How to LEAVE your property in a will
When you are making your Quick Laws Online Will, one of the crucial decisions you need to make is who you would like to leave your property to. In this section of the form, you specify who gets what upon your death. It's up to you to decide who you would like to leave your property to.
Make a list of your property: optional
Before you start, you may find it helpful to make a list of your assets and debts. You can complete our Property Worksheet to make a list of all your property. This is optional. You can give specific items and amounts to people in your Will but individual assets are not listed in a Will.
Property not covered by a Will
In general, some property is not covered by a Will. For example:
- Jointly owned assets: the reason is that title to the asset automatically passes to the second person when the first person passes away.
- Superannuation: the rules governing most superannuation funds provide that the fund has the choice to decide where it pays your accumulated superannuation benefits, which includes paying it to your estate or to the beneficiary you have nominated. It's advisable to check this with your superannuation fund.
- Life insurance policies: as with superannuation, unless there is a specific person nominated as the beneficiary, the money will be paid to your estate and will be subject to your Will. If there is a specific nomination, then the money will be paid directly to that person.
- Capital Gains Tax (CGT): if you have significant assets, you should consider the effect of CGT on your estate. In general terms, when an Executor or Beneficiary disposes of an asset received from a deceased estate, they may have to pay CGT.
Give specific gifts
In this section of the form, you can decide whether you would like to give a specific gift to a person or charity organisation. This item might be something such as your DVD collection, your boat or an amount of money. You may want to give this to a friend, neighbour, family member or your chosen charity.
If you choose to give a specific gift, then this item or amount of money will not be included in the rest of your estate after you pass away. If you have left specific gifts, then the rest of your property is called 'the rest and residue' or 'residuary' estate.
Make sure that you describe the gift with sufficient detail so that it can be identified. For example, "Motor vehicle, Nissan Pulsar registration NHJ-987."
Giving gifts to organisations that are not charities
If you would like to leave a specific gift to an organisation that is not a charity, then the rules are more complex. Upon your death, it is possible that one of your family members may have the right to contest a gift given to an organisation that is not a charity. If you would like to give a gift to an organisation that is not a charity, then it's best to seek legal advice.
Leaving your property
Once you have decided if you want to give any specific gifts, you have now reached the main part of your Will; who you would like to leave the rest of your property to.
Can anyone be a Beneficiary?
A Beneficiary is a person who has been left property in someone's Will. A Beneficiary does not have to be over the age of 18 years to be named in a Will. If a Beneficiary is a minor, any entitlement will be held in trust by the Executor, until the Beneficiary reaches the age of 18 years (this is called 'the vesting age').
If you would like to leave property to a Beneficiary that is under the age of 18 years, then any property left to them in your Will is held in trust by your Executor until that person reaches the age of 18 years.
How to divide your property
Once you have decided who you want to receive your property, the next thing you need to decide is whether you would like to give the whole of your estate to one person or whether you want to divide your estate, in equal or unequal shares.
For example, you may want to leave half of your estate to be divided equally between your brothers and sisters and the other half to be divided equally between both of your parents. First, you would name your brothers and sisters as the first Beneficiaries and Co-beneficiaries together and indicate 50% in the share of the estate. You would then repeat this process with your parents for the other half of your estate.
If you do not want a Beneficiary to share equally with another Beneficiary, then you should list the Beneficiary separately. If you want a Beneficiary to share equally with another Beneficiary, then you should list them together as Co-Beneficiaries.
If you are dividing your estate, make sure that all of the shares add up to 100%.
Excluding specific persons
If you want to exclude a specific person from getting any property from your estate, then its best to seek legal advice. If the person you want to exclude is a spouse or family member, they may have a claim to your property upon your death, depending on the laws of your state or territory. Therefore, you may need to give reasons why you want want to exclude them in your Will. In these circumstances, it's best to seek legal advice from a qualified person.