Why making a Will matters
Every Territorian aged 18 and over should have a legal Will. It is a simple, yet essential, step in planning for the future and protecting family and friends from legal complications.
A Will allows a person to document their wishes for when they die. It also provides clear guidance for loved ones, reducing stress during a difficult time.
Having a legal Will is the best way to make sure a person's estate is managed in the way they would want. It ensures that a person's money, property, and belongings are given to the right people.
A Will allows people to:
- appoint someone to manage their estate
- choose guardians for their children
- give specific items to people
- choose who will get parts of the estate.
Without a Will, the law decides how a person's estate is managed. This can lead to delays, disagreements, or go against the person's wishes.
How to make a Will
There are a number of ways that a Will can be made:
- Meet with a solicitor and have them prepare the Will.
- Make a Will with the Public Guardian and Trustee (if you are eligible).
- Use a do-it-yourself (DIY) kit, available from an Australia Post Office, online or from some newsagents.
It is strongly recommended that legal advice is sought if using a DIY kit. An improperly written or unclear Will may cause delays, extra costs, and stress for loved ones. In some cases, the court may need to intervene to interpret or validate the Will.
A DIY Will may not be suitable if:
- The estate is complex involving multiple properties, a business ownership, or significant investments.
- A blended family is involved, increasing the risk of inheritance disputes.
- Someone is being excluded from the Will, which may lead to legal challenges.
- A dependent with special needs requires a trust or specific legal arrangements.
- There is uncertainty about legal terms, increasing the risk of an invalid or misinterpreted Will.
- Family conflict is likely, as an unclear Will can result in disputes and legal costs.
Making a valid Will
For a Will to be legal it must be:
- in writing
- signed and dated by the person making the Will
- witnessed by two independent people not named in the Will
- made by a person with capacity.
Wills prepared by the Public Trustee
The Public Trustee prepares and updates Wills for residents of the Northern Territory who are:
- existing clients who have already made a Will with the Public Trustee
- people wanting to name the Public Trustee as their executor
- pension and concession card holders.
Fees and charges are associated with services provided by the Public Trustee.
Read more about the types of Wills the Public Trustee can prepare, including what is considered standard or complex, and what types of Wills are not included.
- Entire estate to 3 levels of standard beneficiary
- spouse
- children
- grandchildren
- One gift to parents, siblings or other
- One or 2 specific gifts
- rings to daughter
- tools to son
- Appointment of guardian for minor children
- Gifts held in trust for when the person turns 18 or 21 years of age
- More than 3 levels of beneficiary
- spouse
- children
- grandchildren
- sister
- nephew
- friend
- 3 or more specific gifts
- rings to daughter
- tools to son
- paintings to sister
- lawn mower to nephew
- Creation of simple trusts for a specific purpose
- child's education
- adult child living with a cognitive disability
- Discretionary trusts
- Tax minimisation strategies
- Conditional bequests
- Life interests or similar
- Complex legal arrangements.
What can be included in a Will
A Will may include:
- who will administer the Will (executor)
- who the beneficiaries are and what things they should have
- who gets specific items such as jewellery, art or furniture
- who should get money from life insurance, superannuation or investments
- who should be the legal guardian for any children under 18 years old
- who should care for any pets
- funeral wishes.
Appointing an executor
Deciding who to appoint as executor of a Will is an important decision. The executor ensures the instructions in the Will are followed. They also administer the estate until all assets are given to beneficiaries.
Before appointing an executor, some things to think about include:
- Does the executor have the necessary skills and time to administer the estate?
- Is the executor willing and able to administer the estate?
- Will the executor be too upset? Family or loved ones may be going through a difficult time and feel unable to undertake this role.
- Will the appointment of the executor cause a conflict among your beneficiaries?
An executor can be:
- a spouse, family or friend over 18 years old
- a lawyer
- a licenced trustee company
- the Public Trustee.
More than one person can be appointed to administer an estate.
If an executor is not a lawyer or trustee service, they can seek legal advice if there are any issues. The estate pays for any legal advice an executor receives in relation to the management of the estate.
Updating a Will
A person can update their Will as often as they wish and should check it every few years to make sure it reflects current circumstances.
Changes to a Will may be needed if any of the following happen:
- New property or other major assets are bought.
- Property or other major assets mentioned in the Will are sold.
- The person gets married, divorced or separated.
- More children are born who are not named in the Will.
- The person changes their mind about who they want to leave a gift to.
- Partner, spouse or a beneficiary named in the Will dies.
- The person starts a new relationship.
- An executor named in the Will dies.
- The person arranges for their superannuation to be paid into their estate and wants it to be distributed in a certain way.
What happens if someone does not have a Will
If a person dies without a Will in the Northern Territory, the Supreme Court will appoint someone to manage their estate.
This person is called an administrator. The court might choose:
- the spouse or partner of the deceased
- next of kin, such as a child or close relative
- a person that the court sees fit
- the Public Trustee.
More than one person may be appointed to administer an estate.
The Administrator is responsible for:
- collecting the person's assets
- paying any debts
- sharing out the estate according to the law.
These duties are set out in the Administration and Probate Act 1969.
This means the person's assets might not be shared the way they wanted. People they didn't choose could get their money or property, and close friends or charities they cared about might receive nothing.
Read more about Administering an estate where there is no Will.