Getting your affairs in order

A will is a legal document that sets out what you want to happen to your assets after you die. These assets are called your estate and may include your house, land, car, bank accounts, jewellery, clothes, household goods or investments. A will can also deal with how your debts will be paid and from what assets. A will may also say who should look after any dependent children under the age of 18. All adults should have a valid will. It’s the best way to make sure that your assets are distributed in the way you would like after you die.

Who can make a will?

Anyone aged 18 or older can make a will. You will need to have “testamentary capacity”. This means that you must:

• know and understand what a will is, as well as its nature and effect
• be able to communicate what you want to put in your will and why.

If there could be any doubt about whether you have testamentary capacity (for example, if you are taking heavy pain medicine that is affecting your thinking), it’s a good idea to get a doctor’s certificate.

Why is it important to make a will?

Even if you don’t own much, making a will is a good idea. Having a will makes it easier for your family and friends to make legal and financial arrangements after you die. Without a will, these arrangements can be complicated and expensive.

A will is particularly important for anyone with a family or dependants, especially if they are separated or divorced.

If you don’t make a will, the law will decide who gets your property when you die, and it might not be who you would like. It is less expensive after you die if you have a will as the fees in obtaining letters of administration when there is no will are much higher than obtaining a Grant of Probate where there is a will.

How do I make a will?

There are several ways to make a will.

• See a lawyer – A lawyer can help you draft a will. The cost of preparing a will varies. Ask around to find the best option for you. If you can’t afford to pay, Cancer Council may be able to arrange a lawyer to draft a will for free.
• Use the SA Public Trustee – The SA Public Trustee can help eligible customers draw up a will for free. To see if you are eligible and to find out more about their services visit their website.
• To support people writing their Will, Cancer Council SA has partnered with one of Australia’s leading online Will’s writing platforms, Safewill. Through the online service that Safewill offers, you can produce a simple, legally binding Will that is reviewed by Safewill’s legal advisers.

Can I write my own will?

Some people buy a kit from a newsagency or post office to draft their own will. You can also write a legally binding Will online with Safewill. It is important to know that there are certain requirements for a will to be valid. If you do not understand or are unclear about these requirements, using a lawyer ensures you get it right.

What’s in a will?

A will usually includes:

• who should have responsibility for carrying out your instructions (executor) – this can be a family member, friend or the SA Trustee & Guardian
• who you want to leave your money and property to (beneficiaries)
• who you wish to look after your children if you and the other parent both die before the youngest child turns 18 (guardians)
• your wishes for funeral, cremation or other arrangements.

Before you talk to someone about making a will, think about who you would like to appoint in these roles.

Some assets such as superannuation and insurance may not form part of your estate. Benefits may be paid directly to your dependants, which means your will won’t have any effect on them.

What makes a will valid?

For a will to be valid it must be:

• in writing – handwritten, typed or printed
• signed and dated on every page and witnessed by two people who are not beneficiaries in the will nor their spouses, and who are aged over 18. They will need to witness your signature and sign their own name on every page. They both need to be present at the same time with you and use the same pen with one staple through the document (and avoid taking the staple out and replacing it).

Witnessing a signature doesn’t mean the witness wrote the will or read and understood what’s in it. It just means that they saw the person who made the will (the testator) sign the document.

If your will does not meet these requirements, it may not be enforceable. The Court has the power to grant probate (confirm that the will is valid) or deny probate, and your property could be distributed as if you had not made a will. In exercising this power, the Court needs to be satisfied that the document sets out how you want your assets to be distributed.

It is generally a good idea to get professional assistance with making a will. This is to ensure the will is valid and that particular parts are written in such a way that they are legally correct (so that a Court will find that they are effective). It is also a good idea to have the will signed in front of the lawyer to ensure this is
done correctly.

If there are any questions as to the validity of your will, the costs to your estate will likely increase.

Where should I keep my will?

Keep your will in a safe place. Your lawyer will usually hold the will for you, or you could keep it with your other important documents. Alternatively, the SA Public Trustee offers a free will storage service for eligible customers. It’s important to tell your executor where your will is kept.

I made a will a few years ago. Do I have to update it?

It’s a good idea to review a will regularly (e.g. every five years) to check it is up to date.

If you got married since you made a will, you will need to make a new will. If you got divorced, separated or had children since your last will, it may be a good idea to write a new will or have your lawyer help you make a formal addition called a codicil.

Can my will be challenged?

Yes. South Australian law expects that you make “proper provision” for certain people. These include:

• current spouses
• de facto partners who are living with you around the time of your death
• children
• financially dependent grandchildren
• any other financially dependent people in your household

If you don’t make provisions for these people, they can go to the Court and challenge (contest) your will. The Court will consider their needs, their relationship to you and whether they contributed to your estate (e.g. as part of a marriage).

If you want to leave any of these people out of your will, you should talk to a lawyer.

What happens if I don’t make a will?

If you die without a will (called intestate) an administrator (often a relative) will be appointed to carry out similar duties to an executor and distribute your estate according to a standard formula. This may not work out the way you would have wanted.

If you do not have a will, legal procedures may be more complicated, time-consuming and expensive. This may cause greater expense and worry to your family.

Advance care planning means preparing documents now that will help your family and friends make decisions on your behalf if you are not able to make them yourself.

This includes decisions about your finances, property, medical care and lifestyle. Advance care planning documents are used to set out your wishes and in South Australia include:

• enduring power of attorney
• advance care directive.

Like a Will, you need to have capacity to make these documents. This means understanding what the documents are and communicating what you want to include in them, and why. If there could be any doubt about your capacity, it’s a good idea to get a doctor’s certificate to prove you have capacity.

Before making these documents, you may want to let a person or people you trust know and communicate your wishes to them.

Enduring power of attorney

An enduring power of attorney gives another person (called the attorney) the power to make financial and legal decisions for you.

An enduring power of attorney is similar to an ordinary (or “general”) power of attorney, except that it “endures” beyond a loss of capacity. This means that if you lose consciousness, or you’re too sick to make decisions, the enduring power of attorney still operates.

What it can cover – You can outline the types of decisions allowed, such as managing your bank accounts, paying bills, selling property, and dealing with government departments such as Centrelink. However, there are certain important decisions that the appointed person cannot make, like voting on your behalf or making your will.

You can put limits on the attorney’s power – for example, to prevent them selling a particular asset that you own.

Who can be appointed – You can appoint any person you trust who is aged 18 or over as your enduring power of attorney. You can appoint more than one person if you would prefer, and you can specify that they must act jointly (make all decisions together) or severally (decisions can be made by either person).

You can decide whether the enduring power of attorney begins straight away or only if you lose the ability to make decisions for yourself (which can be certified by a doctor).

How to make an enduring power of attorney – A lawyer can help you or you can buy an enduring power of attorney kit from the Services South Australia website.

The Public Trustee can also help eligible customers to prepare an enduring power of attorney. Visit their website for more information.

A Power of Attorney does not need to be registered with the Land Titles Office unless there is a direction or requirement for property to be sold. 

Advance Care Directive

An advance care directive is a document that sets out your wishes for your future medical care, living arrangements and personal matters. This is sometimes called a living will.

What it can cover – It can include decisions about whether you want to receive artificial nutrition or hydration, whether you want to be resuscitated, or whether you want to receive antibiotics as part of your treatment.

The more guidance you give on your preferences, the more likely your family and health care providers will make decisions that respect your wishes.

If you have particular religious beliefs that affect your health care decisions, you can also record these in your advance care directive.

An advance care directive only comes into effect if you are unable to make your own decisions, but to be valid, it needs to be made while you are still mentally competent.

How to make an advance care directive – Most lawyers will help you draft an advance care directive, but it doesn’t need to be witnessed by a lawyer. You can also prepare one by downloading a free DIY kit from the Advanced Care Directives website.

In South Australia, an advance care directive is legally binding.

Where to keep a copy – You should keep a copy of your advance care directive and give one to your general practitioner (GP), oncologist, and a family member or friend. You can ask for it to be placed in your medical record and for your solicitor to keep a copy.

For further information visit Advance Care Directives and Advance Care Planning Australia.

Advance Care Planning Australia also has their information available in other languages.

Let your family, friends and carers know your wishes. 

Superannuation benefits do not automatically form part of your estate and are therefore not governed by your Will. When a member of a superannuation fund dies, the fund usually pays out their death benefit to one or more of their dependants. This includes the preserved amount (the contributions the member made while they were working) and any insurance benefit.

You can tell your superannuation fund who you would like to receive your death benefit. You can do this by completing a death benefit nomination or a binding
death benefit nomination. The binding nomination means the fund trustee must follow your wishes.

You can only nominate someone who is a financial dependant, such as a spouse, de facto partner, or child. You may need to update or confirm binding nominations every three years, depending on fund rules. Contact your superannuation fund for a nomination form.

If you have another life insurance policy (not connected to your superannuation account), you will need to nominate the beneficiary of that policy separately. Similarly, life insurance will generally be separate to your estate and not governed by your will. Contact your insurer to nominate the beneficiary of that policy separately.

It’s a good idea to have all of your paperwork in the one place. This will make it easier if, for example, you need to be in hospital for a long time and a family member has to help you with financial and legal matters.

Important documents to keep together might include:

• birth, marriage and divorce certificates
• bank and credit card information
• share and other investment details
• Centrelink and Medicare details
• superannuation and insurance information
• funeral information
• house title/lease documents
• passport