Wills and estates – frequently asked questions

What can I include in a Will?
How do I change or cancel my Will?
What does an executor do?
What is a grant of probate?
What if no executor is named in the Will?
What happens if someone dies without a Will?
Is a Will valid if it hasn’t been made following the official guidelines, for example, if it isn’t signed?
When can a Will be challenged?
What if a Will doesn’t provide sufficiently for the Will maker’s children or other dependents?

What can I include in a Will?

You can include:

• assets, such as houses, cars, money, shares, cash
• rights and powers, such as the right to appoint the trustee of a family trust
• specific belongings such as jewellery, books, photos – if you list specific items make sure they are easily identified.

Some assets, such as superannuation and life insurance, may not be distributed in a Will. For example, a superannuation benefit may go directly to the person nominated to the superannuation fund. If you have superannuation, make sure you nominate the people that you want to benefit. It is a good idea to talk to your lawyer and/or financial advisor about this.

How do I change or cancel my Will?

You can change your Will as often as you like. The best way to change your Will is to make a new Will.

You should also make a new Will if you:

• marry or remarry; marriage revokes (invalidates) any pre-existing Will (unless it was made in anticipation of the marriage) so it is important to make a new Will when you marry
• divorce or separate
• purchase a significant asset/investment
• get involved in a new business, company or trust.

What does an executor do?

An executor is a person (or sometimes more than one person) named in a Will to carry out the wishes of the Will-maker after their death. Often solicitors or specialist trustee companies are named as executors.

The executor may have to:

• collect all the assets and have them valued, if needed
• find out what debts are owed and pay them from the money made by selling the assets
• pass on the assets to beneficiaries
• arrange tax returns
• claim life insurance
• arrange the funeral
• apply for a grant of probate
• distribute the estate according to Will
• take or defend legal action on behalf of the estate.

An executor must be over 18 when they apply for a grant of probate, if it is needed.

What is a grant of probate?

A grant of probate is a court order giving the executor permission to carry out what the Will says. Not every Will needs a grant of probate, but it is usually required if there is real estate, or large sums of money or shares.

To apply for a grant of probate official forms must be completed and submitted to the Probate Office of the Supreme Court. This is usually done by the Will's executor.

Related websites

Supreme Court – probate forms

What if no executor is named in the Will?

If the Will-maker didn’t appoint an executor, usually the major beneficiary of the Will is appointed to administer (deal with) the estate. This person who takes on the responsibility of administration is called the administrator.

An administrator has the same responsibilities as the executor. However, they must apply to the Probate Office of the Supreme Court for ‘letters of administration’, not grant of probate.

What happens if someone dies without a Will?

If you die without a Will the law decides who gets your assets. This is called ‘dying intestate'.

Assets will usually pass to your surviving spouse/partner and children, and then next-of-kin. These rules apply to everyone and do not take into account an individual’s wishes or situation.

The estate does not pass to the government unless the deceased has no living relatives.

If there is no valid Will an application must be made to the Supreme Court for ‘letters of administration’, rather than a grant of probate.

Is a Will valid if it hasn’t been made following the official guidelines, for example, if it isn’t signed?

If a document that doesn’t strictly meet the requirements for a valid Will, the Supreme Court can still grant probate if the court is satisfied that the Will-maker intended the document to be their Will.

The court can also make decisions about changes or additions to Wills and rectify any obvious errors.

When can a Will be challenged?

Your Will can be challenged after you die if:

• you did not have the testamentary capacity to make a Will at the time you signed it
• you made the Will under the influence of others
• a person you had a ‘responsibility’ to provide for, believes you haven't left them a fair share of your assets.

Any person who can show that the Will-maker had a ‘responsibility’ to provide for them can challenge a Will by starting a Supreme Court process called ‘testator’s family maintenance’.

The court will look at:

• whether the person who died had a responsibility to provide for the applicant
• whether adequate provision was made for the applicant
• if not, what provision should be made
• the physical, mental or intellectual disability of the applicant and any other beneficiary.

Your local community legal centre can give you information and advice about challenging a Will. See the Community Law website for contact details.

Related websites

Community Law

What if a Will doesn’t provide sufficiently for the Will maker’s children or other dependents?

If a person doesn’t provide sufficiently for their dependants (people who rely on them for financial support), their Will can be challenged by making a claim to the Supreme Court.  This is called a ‘testator's family maintenance claim’.

The court takes into account the applicant's circumstances, the size of the estate and their relationship with the Will-maker.

You must apply for a testator's family maintenance claim within six months of the grant of probate or letters of administration being made.

You should get legal advice. Your local community legal centre can give you information. See the Community Law website for contact details.

Related websites

Community Law

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