Many people search online for a quick and affordable way to prepare a Will. Online Will kits often appear attractive because they promise a simple solution without the cost of professional legal advice.
However, preparing a Will involves more than completing a template. A Will must reflect your personal circumstances, assets, family relationships and future intentions. A poorly prepared Will can create uncertainty, disputes and additional costs for your loved ones.
While an online Will may seem convenient, it may not address important estate planning issues that apply to your situation. Speaking with experienced Will lawyers can help ensure your Will is legally valid and achieves your intended outcomes.
A lawyer does more than prepare a document. They consider your broader estate plan, identify potential risks and recommend strategies to protect your beneficiaries and assets.
What is the problem with online Will kits?
Online Will kits use standard templates designed for general situations. They do not provide the personalised advice that comes from discussing your family circumstances, financial position and long-term goals with a lawyer.
When you prepare a Will without legal guidance, you may overlook important issues such as:
- How your assets are owned and whether they can pass through your Will;
- Superannuation and life insurance death benefits;
- Tax implications for beneficiaries;
- Potential family provision claims;
- Protecting vulnerable beneficiaries;
- Creating trusts or other estate planning structures.
A solicitor experienced in succession law can help create an estate plan that considers these issues and reduces the risk of future disputes.
A lawyer prepares an estate plan, not just a Will
A Will forms an important part of your estate plan, but it is only one element. A comprehensive estate plan considers what happens to your assets after death and how your affairs will be managed if you lose capacity.
Your lawyer can help you consider important decisions, including:
| Estate planning consideration | Why it matters |
|---|---|
| Distribution of assets | Ensures your property and financial assets pass to your intended beneficiaries. |
| Guardianship arrangements | Allows you to nominate who should care for minor children if you are unable to do so. |
| Powers of attorney | Allows someone you trust to make financial and legal decisions if you lose capacity. |
| Asset ownership structures | Determines whether assets can pass through your Will or by another legal process. |
Understanding jointly owned assets
The way you own property can affect what happens after your death. Assets held as joint tenants generally pass automatically to the surviving owner through the right of survivorship.
For example, if you jointly own a property with another person, your Will may not control what happens to your share after your death. Instead, the surviving joint owner may automatically receive ownership of the property.
A lawyer can review your asset ownership structures and explain whether changes, such as severing a joint tenancy, may better achieve your estate planning goals.
Superannuation and death benefits
Many people assume their superannuation automatically forms part of their estate. However, superannuation is often distributed separately from your Will.
Your superannuation trustee may pay death benefits according to a valid beneficiary nomination or applicable superannuation rules. The outcome can depend on your nominated beneficiaries and the terms of your super fund.
You can review information about superannuation death benefits through the Australian Taxation Office and your superannuation provider.
A lawyer can help you consider whether your superannuation nominations align with your overall estate plan.
Preventing gifts in your Will from failing
One common problem with DIY Wills is that gifts may fail if circumstances change before your death.
For example, you may leave a specific property, investment or valuable item to someone in your Will. If you sell or dispose of that asset before you die, the intended beneficiary may no longer receive that gift.
This situation is known as ademption. It can create unexpected outcomes for beneficiaries and may result in disputes between family members.
A carefully drafted Will can reduce these risks by considering possible future changes and including appropriate provisions.
Protecting your assets through effective estate planning
A properly prepared estate plan can help protect your assets and ensure they pass to the people you intend to benefit. A lawyer can advise on structures that may provide greater protection depending on your circumstances.
For some families, a testamentary discretionary trust may be an appropriate option. This type of trust is created through a Will and begins operating after your death.
A testamentary trust allows a nominated trustee to manage and distribute estate assets for eligible beneficiaries according to the terms of the Will.
How can a testamentary trust help?
A testamentary trust may provide benefits such as:
- Protecting inherited assets from potential financial risks;
- Providing greater control over how and when beneficiaries receive their inheritance;
- Supporting beneficiaries who may need assistance managing money;
- Offering potential taxation benefits in certain circumstances.
Whether a testamentary trust is suitable depends on your personal and financial circumstances. A lawyer can explain the advantages, limitations and costs involved before recommending this structure.
The Australian Taxation Office provides information about the taxation treatment of trusts, including testamentary trusts.
Reducing the risk of family provision claims
Even if you create a valid Will, certain eligible people may be able to challenge your estate through a family provision claim.
Family provision laws allow eligible people to ask the Court for further provision from an estate if they believe they have not received adequate support or maintenance.
In New South Wales, these claims are governed by the Succession Act 2006 (NSW).
You can find further information about succession law and estate matters through NSW Government legal resources.
Who may make a family provision claim?
An eligible person may include:
- A spouse or former spouse;
- A de facto partner;
- A child of the deceased;
- A person who was financially dependent on the deceased;
- A person who had a close personal relationship with the deceased in certain circumstances.
A lawyer can identify potential risks and recommend strategies to reduce the likelihood of disputes after your death.
These strategies may include:
- Providing clear reasons for certain decisions;
- Structuring asset ownership appropriately;
- Creating a detailed estate plan;
- Considering whether additional documents or arrangements are required.
Online Will kits vs professionally prepared Wills
Online Will kits may appear simple, but they often cannot address complex estate planning issues. A professionally prepared Will considers your circumstances and provides advice tailored to your needs.
| Online Will kit | Lawyer-prepared Will |
|---|---|
| Uses a standard template | Prepared after discussing your personal circumstances |
| May not identify estate planning risks | Considers assets, beneficiaries and future risks |
| Limited opportunity for legal advice | Provides guidance on complex succession issues |
| May not address trusts, superannuation or tax considerations | Can incorporate broader estate planning strategies |
Frequently asked questions about online Wills
Is an online Will legally valid in NSW?
An online Will can be legally valid if it meets the requirements under NSW succession law, including proper signing and witnessing requirements. However, a valid Will may still fail to achieve your intended outcome if it does not address your circumstances correctly.
What are the risks of using a Will kit?
A Will kit may not consider issues such as jointly owned property, superannuation, trusts, taxation, family relationships or potential disputes. These oversights can create problems for your beneficiaries after your death.
Do I need a lawyer to prepare a Will in NSW?
You are not legally required to use a lawyer to prepare a Will. However, professional advice can help ensure your Will reflects your wishes, complies with legal requirements and considers potential risks.
How often should I update my Will?
You should review your Will regularly and update it when major life events occur, such as marriage, separation, divorce, having children, acquiring significant assets or changes to your family circumstances.
Why professional estate planning is worth considering
A Will is one of the most important legal documents you will prepare. While online Will kits may seem convenient, they often cannot replace personalised legal advice.
A professionally prepared estate plan can help protect your assets, provide certainty for your loved ones and reduce the risk of disputes after your death.
Our experienced Will lawyers can assist with preparing Wills, reviewing existing estate plans and providing advice about protecting your assets and beneficiaries.
Speak with experienced Will lawyers
If you need assistance preparing a Will or reviewing your current estate plan, contact us on (02) 9818 2888 or email [email protected].
This article provides general information only and does not constitute legal advice. You should obtain advice about your individual circumstances before making decisions about your estate plan.