A will is a legal document that states who should get your assets, money and property after you die.
Writing a will involves writing a document that includes:
- a list of your assets (property, shares, jewellery)
- who you would like to get your assets after you die
A will can also include information about what you want for your funeral or memorial.
A will is the only way for you to make sure your assets are distributed they way you want them to be.
An executor is named in your will and is responsible for carrying out your wishes after you die.
You can appoint one or more people to execute your will, including either:
- a person, or people, that you know (for example, your spouse, siblings, or children over the age of 18)
- a private organisation or trustee
- a solicitor
- the public trustee (NSW Trustee & Guardian)
Some things to consider when choosing someone as your executor:
- how complicated your estate will be to administer
- how much time the have to administer your estate
- if they are willing to be the executor
- if they are comfortable working with finances or legal processes
- if choosing them will cause conflict within your family
Before you appoint someone as your executor, talk to them about what’s involved, and if they want to take on the responsibility.
How complicated will your estate be to administer?
Complicated estates take more time and effort to administer.
Your estate will be complicated to administer if you:
- have a property where tenants have a legal right to live in the property after you die(eg. a life estate)
- are receiving money as a trustee of a trust
- are leaving an ongoing trust as part of your will
It might also be complicated if you:
- have a self managed superannuation fund
- have an investment property
- have assets in different countries
- have assets in more than one state
- own assets with multiple owners
- are a director of one or more companies
- have debt on an asset that is greater than the value of the asset (eg. a mortgage)
- think there could be a dispute over your estate
If you think your estate will be complicated to administer, you might consider appointing:
These organisations charge a fee to act as your executor. How much they charge will depend on the size and complexity of your estate.
To make sure your will is valid, it's best to get a solicitor to help you write it.
You can write a will on your own but if there is a mistake it might not be legally valid.
If your will is not valid your estate will be distributed according to a set formula called ‘rules of intestacy’.
To contact a legal professional, you can either:
There is a cost involved if you use either of these services.
Update your will any time there are big changes in your life.
Situations where you might want to update your will include:
- buying a house
- getting married
- separating or divorcing from your partner
- having a child
- retiring from work
- being diagnosed with a serious illness
It's also important to update your will if someone included in the will dies. This might include:
- an executor
- a beneficiary (someone listed to receive your assets)
Many people store their will at home. If you store your will in your home make sure:
- it's in a secure location
- your executors know where you have stored it
You can also leave your will:
- with your solicitor
- in a safe in a bank
- with NSW Trustee & Guardian
It usually costs to store your will with a lawyer, banks, or NSW Trustee & Guardian. These costs are often charged on a yearly basis, and can also involve a charge to access your documents.
If you don't make a will or your will is not legally valid, your assets will be distributed according to a set formula called “rules of intestacy”.
This process will be different depending on:
- If you have living relatives
- If you don't have living relatives
If you don't have living relatives, it's likely that your estate will be passed on to the State.
Your will can also state who you would like to look after your dependent children when you die. This person is known as a legal guardian.
If you want to include a legal guardian in your will:
- get legal advice
- speak with the person you want to appoint as legal guardian
An Enduring Guardian is someone you choose to make health and lifestyle decision for you when you’re not able to yourself. An Enduring Guardian can’t make legal or financial decisions, and they can’t override or change an Advance Care Directive.
An Enduring Guardian can make health and lifestyle decisions for you if you're no longer able to make them.
You don't have to have an Enduring Guardian, but it can be helpful to have someone to act on your behalf. If you would like one, you need to set it up when you still have the capacity to.
It's important to choose someone you trust and to talk to them about your wishes ahead of time.
Some of the decisions your Enduring Guardian could make include:
- where you live
- what services you receive (such as aged care, home care or disability services)
- what medical treatment you get
They can't override or change your Advance Care Directive (see “Make a health care plan” below) if you have one, and they can’t make decisions about your money or assets.
An Advance Care Plan involves deciding what type of care you would like in the future. It documents your values and preferences for healthcare and preferred health outcomes.
The plan is used as a guide for future healthcare decision making if you are unable to communicate your wishes for yourself.
An Advance Care Plan is made in discussion with your doctor, carers, and/or close family members. It can be made by others who are close to you if you are unable to make decisions.
An Advance Care Plan won’t be legally binding but it can help people to make decisions about your health and lifestyle.
You can find Advance Care Plan information in NSW Health’s Making an Advance Care Directive booklet.
Talk with your health care team, including your GP, for information on options for care.
Seek advice from your health care team, including your general practitioner (GP) for information on options for care. Your care team will talk to you about choices and preferences at the end of life. This will include if you need specialist care, what support you and your family may need and where you prefer to receive care.
People approaching and reaching the end of their life require different types and levels of care and support. Needs will change over time.
Towards the end of life, some people may need palliative care. Palliative care aims to improve the quality of life of people as they head towards the end of life, as well as that of their carers and families. It can include the prevention of, and relief from, pain and other distressing symptoms.
Palliative care addresses needs that may be physical, psychosocial or spiritual.
For more information about palliative care see:
To find specific services, see:
An Advance Care Directive is a way to say what healthcare treatments you would like to have or refuse, should you be in a position where you are seriously ill or injured and unable to make or communicate decisions about your care and treatment.
An Advance Care Directive can only be made by you as an adult with decision making capacity. If it is valid, it must be followed.
No one can override your Advance Care Directive, not even your legally appointed guardian.
An Advance Care Directive may include one or more of the following:
- the person you would like to make medical decisions for you if you are unable to make decisions
- details of what is important to you, such as your values, life goals and preferred outcomes
- the treatments and care you would like or would refuse if you have a life-threatening illness or injury.
Where to keep your Advance Care Directive
It is a good idea to leave a copy with your:
- healthcare facility
My Health Record allows you to upload your Advance Care Plan and Advance Care Directive as part of your health information so that they will be available to healthcare staff in an emergency.
Organs and tissue donations are used to improve and lengthen the lives of people who receive them.
Organ donations can be accepted from both people who are alive or people who have died.
For information about becoming an organ donor, see the Australian Government’s DonateLife.
An Enduring Power of Attorney allows someone to make legal and financial decisions for you when you’re not able to yourself. An Enduring Power of Attorney doesn’t allow you to make health care decisions.
At the end of your life, you might need someone to make legal and financial decisions for you.
An Enduring Power of Attorney is a legal document that lets you appoint a person (or organisation) to make legal and financial decisions for you.
Someone with Enduring Power of Attorney can do the following activities for you:
- pay your bills
- sign legal documents
- manage your money
- manage your assets
- access your bank accounts
Enduring Power of Attorney doesn't let someone make medical or care decisions. The legal document that lets people make medical decisions is called Enduring Guardian.
It is important to think carefully about who to appoint under an Enduring Power of Attorney, as they will be responsible for big decisions.
Choose someone that you trust and who you know can:
- understand your wishes
- manage your finances
- act in your best interests
- communicate your wishes
- keep accurate records.
The person you appoint must be at least 18 years old and have the time and ability to take on the role.
Store your Enduring Power of Attorney document in a safe place so that it can be accessed when it’s needed.
You can give a copy to both:
- your solicitor
- the person you have delegated as Enduring Power of Attorney.
You can also store your Enduring Power of Attorney document and other planning ahead documents in NSW Trustee and Guardian’s Will Safe.
There is a fee for storing your documents with Will Safe.
If you want the person that you’ve delegated Power of Attorney to deal with your property, you will need to register your Enduring Power of Attorney document with NSW Land Registry Services.
This includes if you want them to be able to:
- sell your property
- mortgage your property
- lease your property
Write down your plans and share them with your close family and friends so that people know what you want for your funeral or memorial service.
Planning a funeral or memorial service before your death can help to reduce stress for your friends and family when they are grieving.
Decisions you can make ahead of time include:
- whether you want burial or cremation
- organising payment
- choosing between different types of services
To make sure people know your plans, you can include information about your funeral or memorial service in your will.
There are many different options for funerals and memorials.
A funeral is usually held at a funeral home, place of worship, cemetery or crematorium. Funerals involve being present the burial or cremation of the person that has died.
A memorial service can be held anywhere (often in someone’s home). Memorial services are separate from burial or cremation.
Common things people consider when organising a service include:
- the location of burial plot or memorial
- whether burial or cremation
- where the service is held
- what kind of coffin you’d like
- who to invite to the service
- who will speak at the service
- readings or music you would like at your service
- what to say at the service and memorial booklet
- what clothing you would like the person to wear
- whether you would like religious practices to be followed
Cultural or religious customs and practices
While many funeral directors arrange funerals or burials that are in line with cultural or religious practices, not all of them do.
Talk to your funeral director to make sure they are able to provide the type of service that you need.
If you don’t want to be cremated, it’s important to write this down. You can’t lawfully be cremated if you have made this clear in your will.
A cremation is usually the cheaper than burial.
If you choose burial, you or your family will need to decide where you would like to be buried.
You can organise to pay for a funeral in many different ways:
- prepaid funerals (kept with a funeral home)
- saving money in a specific bank account or other financial institutions
- funeral insurance (kept with an insurance agency)
- saving in superannuation
If you can't afford to pay for a funeral
In some situations, the person who organises your funeral might be eligible for support to pay for a funeral.
If you or the person can't pay for a funeral after your death, you may be eligible for what is called a “destitute funeral”. In a destitute funeral, the government covers the cost of a basic funeral.
Writing out your preferences for your funeral can help the people organising it to:
- make confident decisions
- deal with different opinions
- represent your true wishes.
While it can be useful for the person who is organising the service to have a guide to follow, it is not legally required.
If you don’t plan for your funeral or memorial service, your family or friends will need to make decisions on your behalf.
To make it easier for someone to cancel and transfer services, make a list of your existing accounts and assets.
This might involve you writing down the details of:
- bank accounts
- accounts with services
- memberships of organisations
- property that you own
- valuables that you own
After you have listed the details, tell your family or friends where this list is. This will help them to manage your estate.
It’s up to you which organisations you include on the list, but it can be useful to have a list of any organisation you have a formal relationship with.
This might include:
- regular doctor or healthcare team
- preferred funeral director
- bank or financial institutions
- executor of your will
- electricity and gas companies
- mobile phone or telephone company
You might also consider making a list of login details for digital accounts such as:
- social media
Which details to include
Include details that the organisation can use to identify you. This might include:
- name and phone number of the contact person
- your membership number or account number
Superannuation and life insurance is treated separately to your will. To make sure your super or life insurance goes to who you want it to, you will need to regularly review beneficiaries with your funds.
Tax and death benefits
There may be tax implications for the people that you nominate as beneficiaries. For example, a super benefit may pass to a spouse tax-free but may be taxable in the hands of adult children.
To protect your privacy, keep your documents in a secure location. If you are keeping them online, make sure the document is password protected and stored with a trusted service.
- Will Safe (by Trustee & Guardian)
- your home
- online, in a shared document
- with your solicitor.
Whichever option you choose, protect your privacy by keeping your documents in a secure location.
This might involve locking them in a safe or protecting them with a password.
It’s common for people to get emotional and legal support when they are preparing for a death.
There are support services that can support you to better understand and process the process of preparing for a death.
Getting support can involve talking to a:
- grief counsellor
- support group with someone who has had a similar experience
You can access these services in different ways, including through:
- one-on-one counselling
- support groups
- online or telephone support
Your GP (General Practitioner) can give you care and advice about support options. They can also refer you to specialist services if you need them.
You may be able to get some of these services for no or low cost.
For information about support services see:
- Dealing with a cancer diagnosis at Cancer Institute NSW
- Information about different kinds of support at Cancer Council NSW
- Information about grief and loss at HealthDirect
A lawyer can help you with:
- writing your will
- ensuring your will is valid
- understanding legal processes
- storing legal documents
You can find lawyers through:
If you cannot pay for a lawyer, you may be able to get legal guidance through:
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