Although there is no national or state Will registration system currently in place, many specific legal requirements need to be followed for a Will to be a valid legal document. Unfortunately, for those trying to locate Wills, this can make them a burden to track down.

While it's not legally required to have a solicitor administer the writing of a Will in Australia, it is highly recommended, especially if your Estate is complex. A solicitor can ensure that your Will complies with legal requirements and truly reflects your wishes.

• Consider your debts and liabilities: Before making a Will, it is important to consider your current debts and liabilities and any debts and liabilities that may arise as a result of your passing (including funeral expenses, legal costs, accounting costs, taxes and other disbursements).
• Consider your assets and beneficiaries: Before making a Will, it's important to consider what assets you have, who you want to receive them and if there are any special circumstances to consider.  Any gifts and bequests in your Will should be specific and without any ambiguity. 
• Choose an executor: An executor is the person who is responsible for carrying out the wishes in your Will. This can be a family member, a friend or a professional advisor.
• Consult a lawyer: It is recommended to consult a Wills and Estate lawyer when making a Will to ensure that it is properly drafted and legally valid.
• Write the Will: The Will must be in writing and signed by the Testator in the presence of two subscribing witnesses. A statement should be included that all previous Wills and codicils are revoked. 
• Appoint a guardian: If you have children under the age of 18 years, you should appoint a guardian in your Will to ensure that your children are taken care of in the event of your death.
• Keep the Will in a safe place: Once the Will is complete, it should be kept in a safe place such as a fireproof safe or with a lawyer.
• Review and update the Will: It's important to review and update the Will regularly, especially if there are changes in circumstances such as the birth of a child, death of a beneficiary, or a change in assets.

While there are many similarities, an Estate Plan goes much further than a Will in dictating how your assets will be taken care of. In complex situations, an Estate Plan will be required to distribute the assets and wishes of a client. It will also help to ensure your beneficiaries don't pay too much in taxes, fees and court costs.

Everyone should have a Will, but not everyone will need to have a comprehensive Estate Plan. Our experienced team can help you make sound decisions about your Estate Plan and ensure the correct legal documentation is in place.

Get in touch with our team to learn more about our Wills and Estate Planning services today.

• The Will maker (Testator) must be at least 18 years old and of sound mind, mental capacity, memory and understanding.
• If a person is found to be of unsound mind and other less restrictive measures have been found insufficient, the Guardianship and Administration Act 1990 allows the State Administrative Tribunal to appoint them a guardian and/or administrator. A guardian can make some personal decisions on the person's behalf, while an administrator can make some legal, financial and property decisions.
• The Will must be in writing and signed by the Testator (or by someone else at the Testator's direction and in their presence).
• The signature of the Testator must be made in the presence of two witnesses, who must also sign the Will in the Testator's presence.
• The subscribing witnesses must not be beneficiaries or related to beneficiaries in the Will.
• Any changes to the Will (including codicils) must be in writing and also be signed and witnessed in the same manner as the original to ensure it remains a Valid Will.
• The Will should be kept in a safe place and the executor of the Will and family members should be informed of its location.

No, a person with Power of Attorney cannot change a Will in Australia. A Will can only be altered by the person who made it, provided they have the mental capacity to do so. Power of Attorney only allows management of the person's affairs while they are alive.

How to make an application for probate in Western Australia?

• Determine if probate is necessary: Probate is required if the deceased person owned real Estate, shares, substantial assets and/or a large amount of money in their own name. If the Estate is small or consists only of jointly owned assets, probate may not be required.
• Identify the executor: The executor is the person named in the Will who is responsible for administering the Estate. If the Will does not specify an executor, a representative or one of the Testator's family members may apply to the court to be appointed as executor of the Testator’s deceased Estate. Alternatively, the Public Trustee may act as executor.
• Prepare the application: The application for probate must be completed and lodged with the Supreme Court of Western Australia. The application must include an affidavit executed by the executor, an inventory of the deceased person's assets and liabilities and the original Will and death certificate of the deceased Testator.
• Receive the grant of probate: If the court is satisfied that the Will is valid and the executor is suitable, it will grant probate. This gives the executor legal authority to administer the Estate.
• Administer the Estate: The executor is responsible for collecting the deceased person's assets, paying debts and taxes, and distributing the Estate according to the terms of the Will.