• Older person
  • Federal

What is this resource?

This resource sets out information about Wills, Superannuation benefits after death, funeral and burial instructions and a suggested checklist to go through before you see a lawyer.

This information is intended as a guide only and is not legal advice.

Wills

A Will is a document that allows you to say what happens to your assets when you die. You can choose one or more persons – known as an ‘executor’ – who will be responsible for arranging your funeral, paying your bills, and ensuring your assets are given to those you intended, known as ‘beneficiaries’. An executor can be someone you trust – a partner, a friend or a child, for example – or a professional executor, such as a lawyer or trustee company.

Your Will should clearly describe what assets you have – such as real and personal property, jewellery, artworks, coins, antiques, and other collections – and who is to receive them. You will need to consider whether you have a moral obligation to provide for someone. If you want to leave someone out of your Will, you should provide reasons for this in case they subsequently challenge your Will. One option is to outline these reasons in a letter to your executor.

Once you make your Will, you should review it every few years, especially if your relationships or assets change. For example, separation alone does not necessarily affect your Will – your ex-partner is likely to still receive your assets if provided for under your Will. However, divorce or re-marriage is likely to affect your Will. If you do not make a Will, the law decides who receives your assets according to set rules. If your assets are not given to the people you intended, they may need to go to court, which can be expensive, stressful and time-consuming. To guard against this, you should make a Will.

It’s really important to seek independent legal advice about making your Will, especially if you want to provide for a partner or a friend where it might cause conflict with other family members.

Superannuation benefits

When you die, your superannuation and any death benefits will go to the trustee of your superannuation fund, who can potentially pay this to either:

  • a ‘dependant’ – your spouse, child or any other person who is dependent on you; or
  • your estate, where it is distributed according to your Will.

You can nominate where your superannuation benefits are to be paid, which can be binding or non-binding. A binding nomination allows you to nominate who receives your superannuation benefits, which the trustee must follow. A non-binding nomination guides the trustee on who to pay your superannuation benefits to, but the trustee makes the final decision. Some of these nominations may expire, so it’s a good idea to review them every couple of years.

If you do not nominate anyone, the trustee has discretion to pay your superannuation benefit to any dependant or to your estate.

Funeral and burial arrangements

Some people include funeral and burial instructions in their Will. In practice, however, a funeral needs to be arranged relatively quickly and it may occur before a Will can be found.

It is best to discuss your funeral and burial wishes with your executor and other family members and write any instructions down. However, your executor does not have to follow your instructions.

Checklist – before seeing a lawyer for a Will

  • Is a Will appropriate for you?
  • What assets do you own? What debts do you have?
  • Do you trust someone to be your executor? Or would you rather pay for a trustee company?
  • Who do you want to leave your assets to? Family, friends or an organisation?
  • Do you have a moral obligation to provide for anyone? For example, underage children?
  • If you have young children, who will be their guardian?
  • Who do you want to leave your superannuation to?

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