Last Will and Testament Information
Alternate Names:
A Last Will and Testament is also known as a:
- Will
- Last Will
- Will and Testament
What is a Last Will and Testament?
A Last Will and Testament is an important estate planning document that individuals use to outline how they wish their estate to be distributed after they pass away.
A Last Will is often used to communicate essential instructions as well, such as who will retain custody of children or pets, who will take over management of a business, and more.
LawDepot's Last Will and Testament can be used in:
- Australian Capital Territory (ACT)
- New South Wales (NSW)
- Northern Territory (NT)
- Queensland (QLD)
- South Australia (SA)
- Tasmania (TAS)
- Victoria (VIC)
- Western Australia (WA)
What are some of the terms found in a Last Will and Testament?
Some of the most common terms found in a Last Will are:
- Estate: Estate is a person's total net worth or the sum of their assets (or property) minus any debts or liabilities they may have.
- Asset: Assets are things of value, such as money, personal property, real estate, and more.
- Liability: Liabilities are also known as legal or financial debts or obligations; this could include credit card debts, mortgages, loans, and more.
- Testator: Testator is used to describe the person who created the Last Will and who has passed away; in some instances, this person may be called the deceased or decedent.
- Executor: Executor, sometimes called a personal representative, is the person who executes the Last Will, meaning they distribute any assets, handle debts, and ensure important instructions are followed, such as instructions to do with child guardianship.
- Beneficiary: Beneficiary is a term that is used to describe people, organisations, or charities who are being gifted something in a Last Will; typically, a beneficiary is gifted an asset (like an item or money) or the residue of the person's estate.
- Witness: Witness refers to the individual who watched the testator sign the Last Will; witnesses help prove the testator's signature is legitimate and that they intended to sign their Last Will in the event it is contested.
- Bequeath: Bequeath is a term that means to gift something to a beneficiary by way of Last Will.
Do I need a Last Will and Testament?
No matter your situation, creating a Last Will helps you to communicate your final wishes to your friends and family about how to distribute your property, pay off any debts, handle business or family needs, and more.
A Last Will is especially important for individuals who:
- Have a lot of assets that will need to be divided between beneficiaries
- Have been diagnosed with a potentially life-threatening or terminal illness
- Are experiencing chronic problems with their health
- Are reaching old age
If you pass away without creating a valid Last Will, your estate is divided based on intestacy laws and your property may not be given to the beneficiaries you would have chosen.
What happens if I die without a Last Will?
When a person passes away without a valid Last Will in place (i.e. they died intestate), their property is distributed according to state or territorial mandated intestacy laws. This results in distribution being dependent on a number of factors, such as whether or not you had children, were in a relationship (i.e. you were married or in a de facto relationship), had any other living relatives (such as parents or grandparents), etc.
Because an intestate person's estate is distributed to their heirs based on state or territorial law, they risk having important instructions overlooked or their estate being divided differently than they would have divided it. For example:
- A guardian the deceased may not have chosen could be appointed to care for children or pets
- Property may be gifted to a person the deceased may not have wanted to include as a beneficiary (such as an ex-husband or ex-wife they have separated from but not divorced)
- Assets may not be gifted to a certain person (like an aunt, cousin, or a child they were in the process of adopting)
- Certain individuals (such as unmarried partners, individuals who are related by marriage, caregivers, or close friends) may not have any inheritance rights (meaning they would not receive anything from the deceased's Last Will, nor would they be able to make a claim to the court regarding inheritance)
- Charities the deceased wanted to donate to using estate money (a concept called legacy giving) may not get anything
Is a Last Will and Testament legally binding?
For a Last Will and Testament to be considered valid, certain requirements must be met, including:
- The decedent needs to be a legal adult (meaning they are above the age of majority in their jurisdiction) and of sound mind (meaning they have the mental capacity to sign legal documents for themselves)
- The testator was not pressured into creating their Last Will or into gifting assets to a certain beneficiary (a concept known as undue influence)
- The Last Will has been properly executed, which means it has been signed and witnessed
If a Last Will is not completed properly, it may be considered invalid. In some instances, however, even a valid Last Will can be contested (i.e. disputed in court) if someone (like a beneficiary, executor, unnamed heir, etc.) believes the Last Will wasn't written properly or that the deceased was pressured into creating it.
Related Documents:
Frequently Asked Questions:
Last Will and Testament FAQ