Frequently Asked Questions

Find FAQs related to last will and testaments. This is the place to learn more about wills, trusts, estate planning, holographic wills, living wills, inheritance, and other legal matters

A Will or Last Testament is a legal document in which you state who should inherit or receive your property, direct how to pay any outstanding debts and taxes, make bequests and gifts, and name a guardian for your minor children in case one is ever needed.

Tag: Will

These are the most common and recognised type of Will and invariably require two non-beneficiary witnesses to be present at the same time to witness the Testator’s signature to their Will. A simple or statutory Will is a “one-size-fits-all” document that works well for people with small, uncomplicated estates.

An Enduring Power of Guardianship in Australia is similar to a Living Will. Often termed an EGA it sets out instructions for what type of medical treatment, if any, you want administered should you be unable to communicate your wishes at that time. Examples of instructions in an [EGA] include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die. NB : The Law differs in various States/Territories; For example, in NSW an EGA is a separate document whereas in QLD its combined with Enduring Power of Attorney (“EPOA”). In NSW an EPOA is a separate document dealing with legal & financial affairs only while incapacitated and terminates on death

You need a Will to provide for your family and friends after you die – making sure that your property is distributed how and where you wish it to go.
If you die without making a Will (what’s known as dying “intestate”) then the Probate Court decides how your property and assets are distributed in accordance with the law’s legal formula. The Court will also appoint an Executor to manage your estate’s distribution in accordance with this formula.
This can be a long drawn out and expensive affair. During which your family could be denied access to bank accounts and financial information; which has been known to cause severe financial and emotional stress.
Any gifts you had in mind, burial arrangements or to whom you left your estate will not necessarily be known or taken in to account by the government appointed trustee executor.
So, by making a Will you can avoid a lot of emotional, financial, and decision making stress for your family and friends.
When you make your Will it is important to remember that you will not be there to answer questions from family, friends and lawyers. So, to avoid any arguments and upsets, make sure your instructions are quite clear and unambiguous and that you’ve covered everything you want to.
Furthermore, making a Will means you can appoint your own Executors who you know and trust, to ensure that your last wishes are carried out in a sympathetic and honest way.

This type of Will specifies that its provisions are only valid if a certain event happens or does not happen. A common example is the beneficiary reaching a certain age. If the condition in the Will is not met, and the person does not have another Will, the estate will be distributed as if there were no Will.

Also known as a Mum and Dad Will, these are the most common and recognised type of Will and invariably require two non-beneficiary witnesses to be present at the same time to witness the Testator’s signature to their Will. A simple Will is a “one-size-fits-all” document that works well for people with small, uncomplicated estates. You can prepare one by filling in the blanks in a-specific template that contains standard terms that meet your state’s legal requirements.

Also known as a Simple Will, these are the most common and recognised type of Will, and invariably require two non-beneficiary witnesses to be present at the same time to witness the Testator’s signature to their Will. A simple Will is a “one-size-fits-all” document that works well for people with small, uncomplicated estates. You can prepare one by filling in the blanks in a-specific template that contains standard terms that meet your state’s legal requirements.

A Living Will, more correctly described in Australia as an ‘Enduring Power of Guardianship “ (EGA) sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in an (EGA) include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die. NB : The Law differs in various States/Territories; For example in NSW an EGA is a separate document in QLD its combined with Enduring Power of Attorney (EPOA). An EPOA deals with legal/financial affairs only while you are incapacitated; it terminates on your death.

If you have set up a living trust, you can use this type of Will to name the trust as your primary beneficiary. When you die, any probate assets not already named in the trust will pour into it and be distributed according to its terms

These are Wills made in your own handwriting and preferably should be witnessed at the time. Ideally you should sign and date it.

These are spoken aloud, not written. You tell someone how you want your estate distributed on your death. Few States/Territories recognise such Wills, and if they do, they must meet certain requirements such as two or three witnesses. These are also called deathbed Wills.

Couples, usually spouses or civil partners, may each make identical Wills leaving everything to the other person. Each Will may also include the same, mutually agreed upon beneficiaries should they both die at the same time. The survivor can change their Will at any time. Also known as Mirror Wills.

Couples, usually spouses or civil partners, may each make identical Wills leaving everything to the other person. Each Will may also include the same, mutually agreed upon beneficiaries should they both die at the same time. The survivor can change their Will at any time. Also known as Reciprocal Wills.

There can be serious legal complications with these in Australia. This is comprised of two separate Wills with identical provisions, similar to mirror Wills. However, each contains a promise that the survivor will not make changes later, similar to the joint Will. A Lawyer should draft a complimentary deed between the parties.

In Australia they are known as a Testamentary Guardian. A child’s Testamentary or Will Guardian has the same responsibilities to care for the child as a parent would. That means the guardian has full legal and physical custody of the child and can make all the decisions about the physical care of the child that a parent would make. A guardian can be anyone: relatives, friends of the family, or other people suitable to raise the child can ask to be legal guardians.

The guardian is responsible for the child’s care, including the child’s:
• Food, clothing and shelter
• Safety and protection
• Physical and emotional growth
• Medical and dental care
• Education and any special needs
The guardian is also responsible for supervision of the child and its actions.

NB : In Australia nomination of a Child Guardian in a Will is NOT legally binding and is generally subject to ratifications by the Family Court. Furthermore, State/territory authorities may also intervene under their legislation.

These are sometimes known as a Legal Guardian. A child’s Testamentary or Will Guardian has the same responsibilities to care for the child as a parent would. This means the guardian has full legal and physical custody of the child and can make all the decisions about the physical care of the child that a parent would make. A guardian can be anyone: relatives, friends of the family, or other people suitable to raise the child can ask to be legal guardians.

The guardian is responsible for the child’s care, including the child’s:
• Food, clothing and shelter
• Safety and protection
• Physical and emotional growth
• Medical and dental care
• Education and any special needs
The guardian is also responsible for supervision of the child and its actions.

NB : In Australia nomination of a Child Guardian in a Will is NOT legally binding and is generally subject to ratifications by the Family Court. Furthermore, State/territory authorities may also intervene under their legislation.

An Executor is responsible for seeing that (1) the terms of the Will are carried out and distributing the estate (2) applying for probate if necessary, winding up the deceased’s’ affairs, arranging final tax returns and payments, and defending the Will against any challenge.

Although a Will should appoint an executor, it is still valid if it does not. Anyone over the age of 18 can be appointed as an executor. You can appoint a major beneficiary. It should be someone you trust, who will act responsibly, and who has agreed to be your executor. Appointing someone younger than yourself, or appointing more than one person, is a safeguard against your appointment becoming void if your executor dies before you. If more than one executor is appointed, it should be made clear whether they are to act jointly or if the second person is only a substitute. It may also be easier (although it is not compulsory) to have an executor who lives in the same state or territory as you.

If a person appointed as an executor does not wish to act, or is not able to act, they can formally renounce the appointment. The substitute or alternative executor will then act. If no alternative is named in the Will, or no executor named at all, the Succession Act 2006 provides who will manage the estate (usually a spouse, child or nearest living relative). This person is called an administrator rather than an executor, but their responsibilities are essentially the same.

Yes you can. And many people do. Often a Lawyer or Trustee.
This can be a very expensive option as the professional fees could be a percentage of your estate, plus hourly fees especially in the case of licenced Trustee/Executor Companies.

A person appointed or who petitions to administer an estate in an intestate succession. (where there’s no will). The antiquated English term of administratrix was used to refer to a female administrator but is generally no longer in standard legal usage.

The antiquated English term of administratrix was used to refer to a female administrator of a deceased person’s estate but is generally no longer in standard legal usage.

Anyone who receives a gift left in a Will or benefits from a Trust.

To leave property at one’s death; another word for give.

A gift of property to a beneficiary.

A kind of insurance policy that protects inheritors against loss that the personal representative of an estate (the administrator or executor) might cause.

A codicil to a Will is (1) amendment to a will; (2) a will that modifies or partially revokes an existing or earlier will.

A gift of real estate left at death. And a verb meaning to give at death.

Refers to a person who has died which in a Will is normally the person who made the Will.

Succession to real property.

Someone who inherits any property through a Will.

Distribution of Property by Executor Administrator.

The person named in a Will, and appointed by the probate court after the Will-maker’s death, to wind up the affairs of a deceased person. In some states/places, executors are sometimes known as personal representatives.

An Executor is a person named to administer the estate, generally subject to the supervision of the probate court, in accordance with the testator’s wishes in the will. In most cases, the testator will nominate an executor or Legal Personal Representative (LPR) in the will.

A Legal Personal Representative (LPR) is a person named to administer the estate, generally subject to the supervision of the probate court, in accordance with the testator’s wishes in the will. In most cases, the testator will nominate an LPR or executor in the will.

A Legal Personal Representative (LPR) is a person named to administer the estate, generally subject to the supervision of the probate court, in accordance with the testator’s wishes in the will. In most cases, the testator will nominate an LPR or executor in the will.

An old-fashioned rarely used term for a female executor.

Someone who creates a trust; a settlor.

A gift made in a Will that cannot be given to the intended recipient because that person has not survived the Will-maker and the Will makes no alternative provision.

Someone who inherits property.

A tax imposed on people who inherit property. There are currently no death duties in Australia. Many countries other than Australia impose inheritance tax or death duties.

A tax imposed on people who inherit property. There are currently no death duties in Australia. Many countries other than Australia impose inheritance tax or death duties.

A beneficiary in a succession, testate or intestate.

A person who has not created a will, or who does not have a valid will at the time of death; equal to intestacy.

Direct descendants, including children, grandchildren, and so on. A spouse, brothers, sisters, parents, and other relatives are not issue.

A legacy is a gift of personal property or money left at death. Traditionally a legacy refers to either a gift of real property or personal property.

Someone who inherits property. Ie. someone receiving a legacy.

All personal belongings and assets except real estate property. (generally)

Another name for the executor or administrator of an estate. Some states/territories may use this term (often abbreviated “LPR”) instead of executor; some states use either.

Per Stirpes is a method of distributing an estate when one of the beneficiaries dies before the will maker. The predeceased beneficiary’s share is divided equally among that person’s own heirs.

A legal process of obtaining PROBATE from the relevant Supreme court in States/Territories allowing the Executor to assume office and “ start work” settling the estate of a deceased person.

Real estate property. Such as land and houses.

All property subject to a Will that isn’t given away specifically in the Will. So what’s left after all taxes, gifts, debts etc. have been settled.

An old-fashioned way of saying “having possession of.” For example, a will might state “I leave to my husband all property I am seized of at my death.”

Someone who creates a Trust.

An inherited gift of a precisely identifiable object.

An inherited gift of a precisely identifiable object.

Someone who takes over as trustee of a trust if the original trustee can no longer serve.

Items that can be touched. For example a car or bracelet. As opposed to intangible such as stocks and shares.

Having to do with a Will. For example, a trust that is set up in a Will is called a testamentary trust.

A person who dies having created a will before death.

The Will writer. Someone who writes and executes (signs) a Will.

A person who executes or signs a will; that is, the person whose will it is. The antiquated English term of Testatrix was used to refer to a female, and is still in use in Australia.

The old-fashioned term for a female will-writer.

A person who has the legal authority over a Trust, and is responsible for its administration.

A Power of Attorney (POA) is a legal document by which one person (the donor) gives another person (the attorney) the power to act on their behalf in certain circumstances.

In this situation, the agent can perform almost any act as the principal, such as opening financial accounts and managing personal finances. A general power of attorney arrangement is terminated when the principal becomes incapacitated, revokes the power of attorney or passes away.

This arrangement designates another person to act on the principal’s behalf and includes a durable clause that maintains the power of attorney after the principal becomes incapacitated.

In this instance, the agent has specific powers limited to a certain area. An example is a power of attorney that grants the agent authority to sell a home or other piece of real estate.

In some states, a “springing” power of attorney is available and becomes effective when a specified event occurs such as when the principal becomes incapacitated.

An enduring power of attorney(EPOA) is a legal agreement that enables a person to appoint a trusted person – or people – to make financial and/or property decisions on their behalf. An enduring power of attorney is an agreement made by choice that can be executed by anyone over the age of 18, who has full legal capacity. In some states and territories, an EPOA must be registered with the authorities.

A Living Will, sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in a Living Will include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die.

In Australia, the law varies in each State and Territory, and has a different name, and slightly different legal requirements so you are strongly advised to consult a qualified solicitor.

ACT Advanced Care Directive
NSW Enduring Guardianship
NT Advance Personal Plan
QLD Advanced Health Directive
SA Advanced Care Directive
TAS Enduring Guardianship
VIC Medical Enduring Power of Attorney
WA Enduring Power of Guardianship

An Enduring Guardianship is a Living Will in (NSW), and sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in an Enduring Guardianship include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die.

In Australia, the law varies in each State and Territory, and has a different name, and slightly different legal requirements, so you are strongly advised to consult a qualified solicitor

An Advance Personal Plan is like a Living Will in (NT), and sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in an Advance Personal Plan include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die.

In Australia, the law varies in each State and Territory, and has a different name, and slightly different legal requirements, so you are strongly advised to consult a qualified solicitor

An Advanced Health Directive is like a Living Will in (NT), and sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in an Advanced Health Directive include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die.

In Australia, the law varies in each State and Territory, and has a different name, and slightly different legal requirements, so you are strongly advised to consult a qualified solicitor

An Advanced Care Directive is like a Living Will in (NT), and sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in an Advanced Care Directive include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die.

In Australia, the law varies in each State and Territory, and has a different name, and slightly different legal requirements, so you are strongly advised to consult a qualified solicitor

An Enduring Guardianship is like a Living Will in (TAS), and sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in an Enduring Guardianship include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die.

In Australia, the law varies in each State and Territory, and has a different name, and slightly different legal requirements, so you are strongly advised to consult a qualified solicitor

An Medical Enduring Power of Attorney is like a Living Will in (VIC), and sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in an Medical Enduring Power of Attorney include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die.

In Australia, the law varies in each State and Territory, and has a different name, and slightly different legal requirements, so you are strongly advised to consult a qualified solicitor

An Enduring Power of Guardianship is like a Living Will in (WA), and sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in an Enduring Power of Guardianship include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die.

In Australia, the law varies in each State and Territory, and has a different name, and slightly different legal requirements, so you are strongly advised to consult a qualified solicitor

An Advanced Care Directive is like a Living Will in (ACT), and sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in an Advanced Care Directive include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die.

An Advanced Care Directive is like a Living Will in the ACT, it sets out instructions for what type of medical treatment, if any, you want administered in case you are unable to communicate your wishes at that time. Examples of instructions in an Advanced Care Directive include whether you want to be put on a respirator or have a feeding tube, and whether you should be resuscitated if you stop breathing. It is not a document that distributes your assets after you die.

In Australia, the law varies in each State and Territory, and has a different name, and slightly different legal requirements, so you are strongly advised to consult a qualified solicitor.

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What is a Will?

What is a Simple or Statutory Will?

What is an Enduring Power of Guardianship?