Make a Will

What Does It Mean to Make a Will?

Making a will is the legal process of recording your instructions about how your estate should be managed and distributed after your death. Your will may also appoint trusted individuals to administer your estate and care for minor children.

In South Australia, wills and estate distribution are governed primarily by the Succession Act 2023 (SA). This legislation sets out the legal requirements for a valid will and the framework for administering estates.

For a will to generally be valid, it must:

• be in writing
• be signed by the testator (the person making the will)
• be witnessed by two independent witnesses

A will only takes effect after the death of the testator. Until that time, you retain full control over your assets and may amend or revoke your will at any time.

Key Elements of a Will

A properly prepared will should address several important elements:

• Executor: The executor is responsible for administering your estate, paying debts, and distributing assets according to your will.
• Beneficiaries: Beneficiaries are the individuals or organisations who will receive assets from your estate.
• Guardianship: If you have minor children, your will can nominate the person you wish to act as their guardian.
• Specific Gifts: You may leave particular items or sums of money to individuals or charities.
• Residual Estate: After debts, expenses, and specific gifts are paid, the remaining estate (the residue) is distributed according to your instructions.
• Contingent Beneficiaries: Your will can specify alternative beneficiaries if a primary beneficiary dies before you.
• Proper Witnessing: A will must be signed and witnessed correctly to be legally valid.

Careful planning ensures your estate is distributed efficiently and reduces the risk of disputes.

Types of Wills

• Simple Will: Suitable for individuals with straightforward estates and uncomplicated asset distribution.
• Testamentary Trust Will: Establishes a trust after death which may provide asset protection, tax flexibility, and structured inheritance planning.
• Mirror Wills: Commonly used by couples where each partner leaves their estate to the other and then to agreed beneficiaries such as children.
• Advance Care Directive: While not part of a will, this document records medical and care preferences should you lose decision‑making capacity.

An estate planning lawyer can advise which structure is appropriate for your circumstances.

The Process of Making a Will

1. Initial Consultation: Discuss your assets, family circumstances, and wishes with an estate planning lawyer.
2. Drafting the Will: Your lawyer prepares a legally compliant will reflecting your instructions.
3. Review: You review the draft and confirm that it accurately reflects your intentions.
4. Signing and Witnessing: The will is formally signed and witnessed in accordance with legal requirements.
5. Safekeeping: The original will should be stored securely while ensuring the executor knows where it is located.
6. Regular Review: A will should be reviewed periodically or when major life events occur such as marriage, separation, birth of children, or acquisition of significant assets.

Your Rights When Making a Will

• Testamentary Freedom: You generally have the right to decide how your estate is distributed.
• Legal Requirements: Your will must comply with the formal requirements under the Succession Act 2023.
• Consideration of Dependants: Certain eligible persons may bring family provision claims if they are not adequately provided for.
• Professional Advice: Obtaining legal advice helps ensure your will is valid and reduces the risk of disputes.

Common Issues with Wills

• Outdated Wills: Life changes may mean an older will no longer reflects your wishes.
• Family Provision Claims: Certain eligible individuals may apply to the court if they believe adequate provision has not been made.
• Ambiguous Instructions: Poorly drafted wills may lead to disputes among beneficiaries.
• Invalid Execution: If signing or witnessing requirements are not followed, a will may be invalid.

Working with an experienced lawyer helps reduce these risks and ensures your estate plan is clear and enforceable.

Why Choose Wright Street Lawyers

• Experienced Estate Lawyers: Our lawyers have extensive experience preparing wills and advising on estate planning in South Australia.
• Personalised Advice: We tailor your will to suit your individual circumstances.
• Careful Drafting: We ensure your will meets all legal requirements and clearly records your wishes.
• Peace of Mind: You can be confident your estate will be managed according to your intentions.

Frequently Asked Questions

Do I need a lawyer to make a will?

While it is possible to create a will yourself, legal advice helps ensure the document is valid and properly reflects your intentions.

Can I change my will?

Yes. A will can be updated or replaced at any time while you have legal capacity.

What happens if I die without a will?

If a person dies without a valid will, their estate is distributed according to the intestacy rules under South Australian law.

What does an executor do?

An executor administers the estate by collecting assets, paying debts, and distributing the estate according to the will.

Can I leave gifts to charities?

Yes. Many people include charitable gifts in their wills to support causes that are important to them.