What a will actually does, and what it doesn’t
Three jobs, no more. Why a will has no effect on jointly held property, superannuation or anything at all while you are alive.
Filed under
Wills
Published
Reading time
4 min
Written by
Vivian Chen
Written by
Vivian Chen
Principal solicitor
Every note is written by the solicitor who would do the work, not by a marketing team.
In short
It names an executor, says who receives what, and records who cares for children
It has no effect at all while you are alive
Jointly held property and superannuation pass outside it
A will does three things. It names the person who will administer your estate, it says who receives what, and it records who should care for any children. That is the whole job.
What it does not touch
It has no effect while you are alive. It does not override the beneficiary nomination on your superannuation. It does not carry jointly held property, which passes to the surviving owner by law regardless of what your will says.
That last point is the one that surprises people most often. A house held as joint tenants with a spouse is not part of your estate at all, which is why the certificate of title matters more than the will does.
What happens if you do not have one
The estate is distributed under a statutory formula that pays no attention to what you would have wanted. A de facto partner may have to prove the relationship. A step-child may receive nothing. Someone has to apply to the court to be appointed administrator, which costs more than the will you did not make.
The formula also ignores need. A spouse of forty years and an estranged adult child are both simply “family”, and the arithmetic does not care which of them was there at the end.
The four decisions we will ask you to make
Every will comes down to the same four decisions, and most people answer all of them inside the first hour.
Who administers the estate, and who does it if they cannot
Who receives what, and what happens if they die before you
Who cares for children under eighteen, and who manages their money
Whether anything should be held in trust rather than handed over
The sentence that does most of the work
“I leave the rest of my estate to my wife, and if she does not survive me, to my children in equal shares.” Most wills are a version of that sentence, plus the machinery that makes it work if something unexpected happens first.
How long it actually takes
Fifteen minutes on the phone, an hour in the first meeting, then a draft within a week. Most people read it, change one name, and sign at a second appointment a fortnight after the first. Nothing about it needs to take months.
What to do next
Find your last will, even if it is decades old
Write down your executors and guardians, with a substitute for each
Check the beneficiary nomination on your superannuation
Ring us and we will tell you whether you need an hour or a whole plan
This note is general information, not advice about your matter. Your circumstances change the answer, which is what the first fifteen minutes are for.
