A Last Will and Testament, often called a Will, is an important estate planning document that outlines your wishes for the distribution of assets and guardianship of dependents after you pass away. 

It’s a cornerstone document for estate planning because it ensures your preferences are known and provides peace of mind for you and your loved ones. 

LawDepot understands the necessity of having a comprehensive and legally binding Will in place. That’s why we offer a convenient and accessible solution with our Australian Last Will and Testament template. This Will kit provides a user-friendly questionnaire so you can create a custom document online, without the lengthy legal processes. 

Whether you're a parent designating guardianship for your children or an individual distributing your assets among loved ones and charities, our template offers the flexibility to address your unique circumstances. Simply choose the sections that apply to you, and our template will guide you through the process step by step.

Our Last Will and Testament template complies with the legal requirements in:

• Australian Capital Territory (ACT)
• New South Wales (NSW)
• Northern Territory (NT)
• Queensland (QLD)
• South Australia (SA)
• Tasmania (TAS)
• Victoria (VIC)
• Western Australia (WA)

Who are the parties in a Last Will and Testament?

1. Testator: The creator of the Last Will and Testament is the testator. Once they pass away, their estate gets distributed according to the terms of their Will.
2. Executor: Also known as a personal representative, the executor manages the administration of the Last Will and Testament.
3. Beneficiary: A beneficiary is someone who will receive an inheritance from the estate. You may name multiple beneficiaries and divide your assets as you see fit.

Use LawDepot’s Last Will and Testament template to create a crucial part of your estate plan. Then, save it as a PDF or print and sign it according to the laws of your state or territory. 

To complete your Last Will and Testament, you’ll need to provide:

1. Testator information

You must include your full name, place of residence, and marital status, as these details affect the laws that apply to the distribution of your estate. 

2. Executor information

Name someone as your executor and list their contact information. The executor of your estate is the person responsible for carrying out your final instructions. This person has legal authority to administer your Will.

You may have more than one executor. In this case, they must cooperate to administer the estate. It’s also best practice to name an alternate executor should anything prevent your first choice from carrying out your estate plans.

Choosing the right executor may be challenging, but it’s a crucial decision because your executor bears a large responsibility. This person should be someone you trust, who understands their duties, and who is willing to act as your personal representative. You can appoint your spouse, a friend, a relative, or a professional (like a lawyer or accountant) to be your executor.

Generally, your executor cannot be a minor or someone who has been convicted of a criminal offence. 

An executor’s duties may include:

• Distributing your property and assets to your beneficiaries
• Coordinating with your superannuation fund to ensure death benefits are paid correctly*
• Repaying your debts with money from your estate
• Recovering money other parties may owe you
• Filing necessary forms (including your final tax return)
• Managing your business as directed

* Note that the beneficiaries of superannuation funds are specified with the fund, not in a Last Will and Testament. Typically, these funds do not come from the testator’s estate and the executor doesn’t distribute them according to the terms of the Will. 

3. Family details

Children typically have inheritance rights to their parents’ estates. As such, be sure to list all of your biological and legally adopted children. 

You should also make a note if the child (whether a minor or an adult) is a dependent. For example, this might include adult children who are mentally or physically disabled. If you have dependent children, you can use your Will to appoint a guardian to care for them in the same way a parent would. 

4. Gifts and estate assets

First, name the beneficiaries you want to inherit your estate assets. You are free to designate specific gifts (e.g., a family heirloom) or a certain percentage of your estate to beneficiaries. You may list individuals or organisations as beneficiaries in your Will. 

If you’re listing an organisation or charity, be sure to include its Australian Business Number. This is a unique 11-digit identifier issued to all entities registered in the Australian Business Register. You can use the Australian Charities and Not-for-Profits Commission to search for a program and find the details needed. 

If you have minor beneficiaries, LawDepot’s Last Will and Testament template allows you to add a term for delaying their inheritance until they reach a certain age.

Keep in mind that there are some things that you cannot give away in your Will:

• Proceeds from programs that already have beneficiaries (e.g., life insurance)
• Jointly held property with rights of survivorship (i.e., the other owner automatically inherits the deceased’s share)
• Your spouse’s separately owned property

Once you’ve addressed any specific gifts, you must name a recipient to inherit the remainder of your estate. 

Finally, you add a total failure clause in case your listed beneficiaries cannot accept the inheritance. This clause states that the inheritance should be divided amongst the individuals of your choosing. Parents and siblings are common choices.

5. Final details

If you’d like to add specific instructions that aren’t already addressed in the questionnaire, you can write the clause yourself. For example, you may wish to forgive someone for an unpaid debt. Our questionnaire provides a sample clause and writing tips to assist you.

Australian laws don’t require you to hire a lawyer to write a Will, but you can have one review your document for additional peace of mind. For instance, complex estates with high-valued assets or investments might require more thought when it comes to naming beneficiaries and creating instructions. 

Remember: you should avoid adding instructions for funeral plans, as it’s possible your Last Will won’t be read until after your funeral, and these instructions will not be legally binding.

In Australia, witnesses to a Will must be competent adults who are present at the time the testator signs the Will. 

They must typically be people who aren’t beneficiaries (or spouses of beneficiaries). While some states have abolished the witness-beneficiary rule, it’s good practice to avoid using beneficiaries as witnesses. This helps mitigate any challenges to the Will based on suspicious circumstances or undue influence.

A Last Will and Testament retains its validity indefinitely, as long as it complies with legal requirements at the time of its creation and hasn’t been invalidated by legal actions or changes in circumstances. 

In other words, if a Will is not completed properly or is successfully contested in court, it may be considered invalid. Someone (such as a beneficiary, executor, or unnamed heir) can contest a Last Will if they believe it wasn't created validly or that the deceased was pressured into creating it.

The legal requirements for Last Will and Testament vary slightly between states and territories, but generally include these key requirements:

1. Legal capacity: The testator must be of sound mind and of legal age (usually 18 years old).
2. Willingness: The testator must create the Will voluntarily, without coercion or undue influence from others. 
3. Presence: The testator and witnesses must be in the same location when signing the Will.
4. Signatures: The testator must sign at the end of the document and acknowledge their signature in the presence of at least two witnesses. The witnesses must also sign the document. 

Yes, you can change your Last Will and Testament at any time as long as you’re of sound mind. 

In fact, it’s crucial to review and update your Will often so it reflects your current wishes and circumstances accurately. Consider updating your Will after significant life events such as marriage, divorce, or birth/adoption of a child. 

Use a Codicil to make a change or addition to your Last Will and Testament. This is a legal document that allows you to amend your Will without creating an entirely new one.

The testator can also revoke their Last Will and Testament at any time by creating a new Will or destroying the existing Will with the intention of revoking it.

No, not all Wills need to go through probate. Generally, a Will can avoid probate if the estate consists mainly of jointly owned assets, assets held in trusts, or assets with designated beneficiaries (e.g., life insurance policies). 

However, factors such as the deceased’s assets and the laws of the relevant state or territory ultimately impact whether probate is needed. For instance, probate may be necessary if the estate includes significant assets (held solely in the deceased’s name) or if there are disputes over the validity of the Will.

When a person passes away without a valid Last Will in place (i.e. they died intestate), their property is distributed according to intestacy laws. 

Each state and territory has their own act to address intestacy. Depending on the unique circumstances, other laws may also apply.

While these laws vary slightly by jurisdiction, they follow a similar framework. For example, inheritances are dependent on a number of factors, such as:

• Whether or not you had children
• If you were in a relationship (i.e. you were married or in a de facto relationship)
• If you have any other living relatives (such as parents or grandparents), etc.

It’s important to note that intestacy laws may not align with your wishes. Without a Last Will and Testament, you risk having important instructions overlooked or your estate being divided differently than you would have divided it.

Yes, a Last Will and Testament is legally binding as long as it meets legal requirements for validity in the jurisdiction it was created.

The executor is legally required to follow the wishes expressed in the Will, and the beneficiaries are legally entitled to their inheritance as specified.

An executor is responsible for carrying out the instructions in the Will, paying debts and taxes, and managing the estate’s affairs. They have a fiduciary duty to act in the best interest of the estate and its beneficiaries. 

Beneficiaries are named in the Will to receive specific assets or inheritances. They have legal rights to these assets, subject to any conditions or limitations specified.