Writing a will: Do you need a lawyer?
Updated June 2023 | 6 min read
Expert contributors Breanna Jayne Sada, psychologist; Andrew Simpson, national head of wills and estate planning at Maurice Blackburn Lawyers
Words by Lucy E Cousins and Katherine Chatfield
You might not want to think about writing a will, but this important legal document is designed to bring peace of mind to both you and your loved ones.
Planning what will happen after you die isn’t easy. The thought of not being around for your family or friends can be confronting – but that doesn’t mean you should avoid making a will.
It’s estimated around 60% of Aussies don’t have a will, with many people citing the fact they simply don’t believe they’re wealthy enough or old enough to make one.
However, wills aren’t only for people with assets or for when you reach retirement. A will is designed to protect your loved ones and it’s recommended every adult has one, no matter how old you are.
"Every individual might have their own reasons for avoiding doing their will," says psychologist Breanna Jayne Sada, "but essentially it comes down to accepting that death is a reality of life."
What is a will?
A will is a legal document that gives instructions on who you want to care for your children if they’re minors, as well as who you want to inherit your estate. An estate includes assets and real estate owned in your name, your personal items, shares and any property acquired after you made your will.
It’s designed to protect your spouse, your children and any other loved ones. "Creating a will doesn’t mean you’re going to die soon," says Breanna. "It just means that your affairs are in order, so when you die, your loved ones are going to be provided for. Knowing there’s some consideration for them can be comforting to them and to you."
This is a sentiment that Jeff Roberts, 61, understands well. "It comes down to the fact that, at various stages of your life, you think more about your mortality," he says. "I wanted to make it easy and straightforward for the people I’m leaving everything to. That’s really important to me."
For Jeff, making sure his will was in place and easy to understand was key to his peace of mind. "I don’t want it to be a great burden when I die; I want it to be as organised as possible. I’ve never done one of those do-it-yourself wills," he says. "I’ve always gone to a lawyer because I wanted to make sure it was done correctly."
Do you need a lawyer to write a will?
Do-it-yourself will kits can be found online, in post offices and from some life insurance companies. These can be a good low-cost way of writing a will, or used as a research tool. However, complicated situations like self-managed super funds, blended families or overseas assets generally need a lawyer to write the associated will.
A will is a legal document; it needs legal advice to go with it," says Andrew Simpson, national head of wills and estate planning at Maurice Blackburn Lawyers.
Some of the errors people make when they do their own will include not signing the document correctly, not getting it witnessed correctly, and trying to bequeath assets or part of their estate they think they own, but don’t.
"We see all kinds of unusual requests or provisions in homemade wills that just won’t work," says Andrew. "That creates massive conflict after the event. It takes longer to resolve, it costs more and creates heartache."
How to start writing a will
Anyone over the age of 18 can write a will, as long as they have the mental capacity to do so. "For a relatively small outlay, you can get a will that you know will be valid and will deal with your scenario at that time," says Andrew.
There are no restrictions on how you write your will. It could be handwritten if you like, but it must be signed and witnessed properly to be legally valid. A letter isn’t a valid substitute for a will, but you can write a ‘letter of wishes’ alongside your will. This allows you to express yourself in a more personal way, alongside the legal will.
Fees to make a will can vary but you can expect to pay from $30 for an online will kit, or approximately $500 to $800 for a will overseen by a lawyer. It’s worth updating your will every five years, or when major life events occur, like buying a house, marrying or having children.
Think about what goes in your will
Try to think of possible future scenarios in yours or your family’s story. For example, you may leave your assets to your partner, but explain in the will that in the event of your partner’s death, those assets go to your children. In the unlikely scenario in which you die together with your family, like in a car accident, what happens then? In this scenario you may want to name someone outside of your immediate family members, or a charity.
How to choose an executor for your will
The next step is to appoint an executor. This is the person you name in your will to administer your estate. The executor of your will can also be a beneficiary. Executors don’t have any authority to change your will.
The executor will take charge after your death and get a grant of probate, which is done by submitting an application to the supreme court, or they can ask a solicitor or lawyer to do it for them. This gives permission to access your legal documents, collect your assets, make sure your bills and debts are paid, and then distribute the estate according to the instructions in your will.
Choose someone you trust to be the executor of your will, who will be able to administer your estate according to your wishes. It can be a challenging role, particularly if you have chosen someone who may be grieving while they’re trying to sort out your affairs. For this reason, some people choose a lawyer as the executor of their will, rather than a loved one.
Speak to your executor about any instructions for your funeral, suggests Andrew, as well as any unusual aspects of your will, like leaving someone out who may expect to be included.
What is a Power of Attorney?
A Power of Attorney is separate from your will. It’s a legal document that allows someone else to act on your behalf to make financial and legal decisions. There are two types of Power of Attorney documents.
- Enduring Power of Attorney. This allows you to appoint someone to manage your financial and legal decisions and continues even if you lose the ability to make decisions for yourself.
- General Power of Attorney. This allows your appointed person to manage your financial and legal decisions, only while you have the ability to make your own decisions.
"Estate planning is made up of two parts. One is ‘What happens when I die?’, meaning the will," says Andrew. "The other part is, ‘What happens if I’m incapacitated or just unable to make decisions?’"
Your Power of Attorney should be someone you trust and who shares your beliefs. Many people choose their partner, child or sibling, but it doesn’t have to be someone who is related to you. You can appoint more than one Power of Attorney.
This legal document must be witnessed and signed by someone over the age of 18.
Why you should write a care plan
A care plan can help to direct your healthcare if you’re seriously ill or injured. You may want to include instructions around life support, resuscitation on life support, pain relief and organ donation. Put your preferences in writing by completing an Advance Care Directive and nominating someone to make medical decisions if you can’t. Talk your wishes through with the person you nominate, and give both them and your GP a copy of your care plan.
Find more information about Advance Care Directive forms.
Storing your documents safely
Andrew advises also drafting a document listing all your passwords and accounts like:
- automatic payments
- bank account details
- debts, including loans
"It’s a good idea to put this kind of information in an envelope and store it with your will, saying, ‘Open in the event of my death’," says Andrew. "Passwords are particularly important as, without them, your friends or family may not be able to access your phone, computer, social media accounts or emails. If you’re concerned about security, you may wish to store these documents in a safety deposit box or with your lawyer."
What happens if I don’t have a will?
If you pass away without a will, or with an out-of-date will, each state has different laws on how your estate would be distributed. "Typically [the government] looks for next of kin to try to find the nearest, closest relative," says Andrew. "The estate will go to that person or that group of people. That can be a very tricky exercise, particularly if you’ve got people all over the world."
Help protect your loved ones
Our Life Protect Insurance is designed to help you look after your family if you’re no longer able to. Life Protect Insurance will pay a lump sum benefit if you pass away or are diagnosed with a terminal illness* to help cover the costs that come at this difficult time, like your mortgage, school fees or day-to-day living expenses.
If you’d like some guidance on how to prepare a will, power of attorney or have any other related questions, members with Life Protect Insurance can get access to a free initial phone consultation with a legal or tax adviser^.
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* Less than 24 months life expectancy. Subject to terms and conditions, exclusions, limitations and definitions. Please read the relevant Product Disclosure Statement, Policy Document and Financial Services Guide available by calling 1800 560 855 or visiting hcf.com.au/lifeinfo, and consider your financial situation, objectives, and needs before deciding on these products as any advice provided does not take these into account. In addition to these documents, you should also read the Target Market Determination (TMD) for the product, which is available at hcf.com.au/lifeinfo. Our Recover Cover products are issued by our own HCF Life Insurance Company Pty Ltd. ABN 37 001 831 250, AFSL 236 806 (HCF Life). HCF Life is a wholly owned subsidiary of The Hospitals Contribution Fund of Australia Limited ABN 68 000 026 746, AFSL 241 414 (HCF). The premiums for Recover Cover products are paid to HCF Life. HCF receives commission from HCF Life for their sale of up to 40% of the first year’s premium plus an additional commission of 80% of HCF Life’s underwriting profit each year calculated as premiums less claims and expenses. HCF’s staff may receive an incentive depending on the annual premium of these products which they sell. This will not exceed 15% of the first year’s premium.
^ Your initial consultation with a legal or tax adviser (available during business hours) will be covered but you’ll be responsible for any fees around extra consultations.
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