A Will is a document that states how you would like your assets to be distributed when you die and the person/ organisation you would like to be responsible for carrying out your wishes.

Your Will is probably the most important document you will ever sign, so it is advisable that you have it prepared by an expert like the Public Trustee.  You will have the support of specialist accountants, client account managers and legal professionals who will ensure you achieve the best possible outcomes.

You can make a Will if you are over 18 years of age and have legal capacity. If you wish to make a Will and are under 18 years and have never been married, you can apply to the Supreme Court.

To have legal capacity to make a Will, you must know that you are making a Will, understand the nature and effect of the proposed Will and that you are distributing your property according to your own intentions.

If you are under 18 years and married, you can make a Will. Also, if you are under 18 years and are about to be married, you can make a Will in contemplation of that marriage. Your Will becomes valid when that marriage takes place.

Having a professionally written, up-to-date Will is important for a number of reasons.

Having a Will can:

• ensure the right people are provided for when you die;
• enable your assets to be distributed according to your wishes;
• minimise disagreements among those who expect to benefit from your estate;
• help those who are responsible for managing your estate understand how you would like your affairs managed;
• enable your estate to be settled efficiently.

While everyone’s situation varies, some of the reasons why you should have a Will and estate plan are:

• YOU decide how your estate will be distributed;
• YOU decide who will take care of your minor children;
• YOU will decide who your executors will be;
• to potentially avoid a lengthy estate administration process – it will save your family or loved ones unnecessary distress at an already difficult time.

Once you make your Will with us and appoint the Public Trustee as your executor, you can have peace of mind knowing that we will administer your estate fairly, impartially and in the best interests of all concerned.

• We keep beneficiaries informed of the progress of your estate administration by: explaining, understanding and consulting them before any major decisions are made.
• We carry out your instructions and your dedicated client account manager will ensure that the well-being of all beneficiaries is paramount.
• The time to complete the administration of your estate will depend on the size of your estate and the terms of your Will.
• The Public Trustee works with banks, insurance companies, real estate agents and all organisations connected with your assets.
• We arrange payment of any outstanding bills and collect any money that is owed to your estate. If you own a business, we will arrange for it to carry on or be sold (according to your instructions and in accordance to the law).

What you can expect from the Public Trustee

Reliability – We are a Tasmanian owned business and have been serving the community for over 160 years – and we will always be here for you.

Understanding – All of our staff are familiar with the natural confusion and grief that follows death. We will help those left behind with understanding and compassion.

Experience – Officially established in 1853 the Public Trustee continues to provide professional and experienced estate services to all Tasmanians. This experience leads to a high level of competence and genuine understanding of client needs.

Expertise – The Public Trustee has experienced professional staff to protect your interests. This impartial expertise allows the Public Trustee to carry out your instructions bias free.

Essential items to bring:

To ensure we are as efficient with your time as possible, please bring the following items along to your appointment:

• current proof of identity such as a driver’s license or passport;
• reading glasses if you need them;
• a list of your assets and their worth;
• a list of the people you wish to be beneficiaries, including their full names (correctly spelt) and age.
• Payment methods are by EFTPOS and EFT only. Unfortunately we cannot accept cash. 

Optional items to bring:

Your Beneficiaries

• Names, ages and addresses of your parents, spouse and children (adopted or natural).
• Names, ages and addresses of any person you wish to be included in your Will.

Your House

• Where is the title?
• Is your property held as joint tenants or tenants in common?
• Is there a Body Corporate in place?
• If possible, bring the title with you to the interview and we will lodge it in our safe custody.

Your Shares

• Security Reference Number – this can be found on a dividend statement.
• Are the shares held jointly or individually?
• Acquisition details – when did you acquire the shares and for how much?

Your Prepaid Funeral

• Prepaid funeral plan/policy or funeral bond.

Your Bank Accounts

• Bank account statement with account numbers.

Your Superannuation Details

• Member number.
• Do you have a binding nomination?

Your Insurance

• Policy documents relating to home, contents, motor vehicle, funeral, life, health or any other policies held.
• Do you have a nominated beneficiary in relation to your funeral or life insurance policy?

Your Furniture and Effects

• Estimated value of these items.
• Estimated value of any specific items of higher value.

Your International Assets

• If you have any international assets, please bring in any information related to these assets.

Your Liabilities

• Do you have any outstanding liabilities, such as a home loan or otherwise? 
• This includes loans to family members. Please supply documentation with respect to the family loan.

Other Information

• Your wishes with respect to burial or cremation.
• Your wishes in relation to guardianship of any infant children.

Just like everything in life, it is important that your Will is up-to-date. We recommend that you review your Will every 3 to 5 years, or as your circumstances change.

For example:

• you bought or sold  an asset (e.g. a house/ business);
• you married, divorced or entered into a significant relationship;
• you gained a new child, grandchild or stepchild;
• one of your children divorced, separated or entered into a significant relationship;
• your children now have stepchildren;
• you retired;
• your spouse or partner died;
• one of your beneficiaries died or became incapacitated;
• you want to change the beneficiaries of your Will, and/or
• you want to nominate the guardian of your minor children.

If you would like to make a Will or update an existing one, please call 1800 068 784 or click here to make an appointment online. 

The simple answer is “yes”, if you get married or divorced it does affect your Will!

Getting married

When you get married your existing Will is revoked, unless that Will was made in contemplation of the marriage. Any provisions made for your spouse will be valid, but not the provisions made for children or others you may have included in your Will.

If you do not update your Will, Government legislation will determine how the remainder of your estate is distributed. This may not reflect your wishes, causing disputes and delays for your spouse and loved ones.

Getting divorced or entering into a de facto relationship

If you have a Will and get divorced your Will is still valid but any provisions for your ex-spouse will be invalid. If this occurs, Government legislation will determine who will get those assets.

If you have a Will and are separated but not divorced, the Will remains valid as will any provisions for that ex-spouse.

A de facto partner can also make a claim on the estate if they can prove they were in a significant relationship with the deceased. Under the Relationships Act 2003 a significant relationship is defined as existing for a continuous period of at least 2 years (this includes same sex couples) or resulted in the birth of a child.

These situations can be very complicated and it is for these reasons that we recommend you review your Will whenever there is a change in your relationships.

The validity of your Will can be challenged on several grounds. These can include:

• failure to meet the formal requirements of a Will – such as not being signed by the testator and two witnesses;
• the Will maker (testator) was not of sound mind;
• the testator was unduly influenced or pressured by another person/s when making the Will – this is called duress.

In Tasmania, if a person dies and their dependants feel that they are left ‘without adequate provision for proper maintenance and support’ they could make an application for further advancement under the Testator’s Family Maintenance Act 1912. However, only the following people can make a claim:

• the surviving spouse or partner of the deceased;
• the children of the deceased, including adopted and stepchildren;
• the parents of the deceased if the deceased had no spouse or children; and
• a divorced spouse or ex-partner who is receiving or is entitled to receive maintenance from the deceased at the date of death.

What matters may the Court take into account?

• The total value of the deceased’s estate.
• The circumstances and needs of the claimant.
• Whether by current community standards the deceased had an obligation to provide for the claimant.
• The means and needs of competing beneficiaries and claimants.
• The character and conduct of the person making the claim.
• The nature and quality of the relationship between the claimant and the deceased.
• The reasons of the deceased, as far as they are ascertainable, for leaving his or her property in a particular way.

A claim must be started within three months after the date of Probate or Letters of Administration being granted. However, this period may be extended by the Court.

Being in the class of people who can challenge does not mean that they will be successful.

If you are concerned about somebody challenging your Will, please talk to our staff about what you can do to minimise a successful challenge.

If you die without making a valid Will, this is called dying “intestate”. State law will then determine how your estate is distributed. Unfortunately, this often means that your estate isn’t distributed according to your wishes.

In Tasmania, distribution is made following the Intestacy Act 2010 formula. In order for the estate to be administered somebody needs to apply to the Court for authority, similar to Probate. This authority is called Letters of Administration and the person authorised is the administrator.

The administrator that the Court selects may not necessarily be the person who you would have selected if a Will was made. The duties of an administrator are similar to an executor and can include paying debts, collecting assets, finalising tax affairs and distributing the assets in accordance with the Intestacy Rules. The administrator must establish the family tree using certificate evidence which may be an expensive and time-consuming task depending on who are the next of kin or if they live overseas.

The Public Trustee can take on this role if next of kin agree to the appointment, but the Public Trustee is not automatically assigned to take on the administrator’s role.

Looking after intestate matters can be a complicated process. The Public Trustee can administer estates when someone else is appointed executor but asks us to take over their role. For those estates where family members are widely scattered or are not close, our genealogy services are highly successful in tracing relatives.

For more information, see Who inherits my assets if i don’t have a valid Will?

If a person dies intestate, without a Will, or not all the assets have been accounted for in a Will (partially intestate), legislation simply nominates who will benefit from the estate; this is carried out using a strict statutory formula to your next of kin.

The estate does not pass to the Government unless the deceased has no living relatives, and extensive efforts to find family have been exhausted.

The Tasmanian Intestacy Act 2010  details who will benefit from an intestate estate.  It can be summarised as follows:

The surviving spouse will inherit the whole estate unless there are children from another relationship of the deceased. Where there are children from another relationship the surviving spouse is entitled to the following:

• Statutory spousal legacy of $350,000 (adjusted to CPI);
• Tangible personal property of the deceased;
• Half of the remainder (if any). The remaining half of any residue is to be divided between all children of the deceased.

If there is more than one surviving spouse (e.g. a separated husband or wife and a de facto partner) each spouse is entitled to share in the estate.

If there is no spouse the residue of the estate is to be divided between all children of the deceased.

If there is no spouse or children the estate will go to the parents.

If there are no parents the estate will go to siblings in equal shares.

If a sibling has passed away, their share will go to their children.

If there are no siblings it will go to the grandparents.

If there are no grandparents, the estate will be distributed in equal shares amongst all the deceased’s aunts and uncles. If an aunt or an uncle has passed away it will go to their children (the deceased’s first cousins).

Only when none of the above family members can be found will the estate go to the Government.

A spouse of the deceased is defined as a person who:

• was married to the deceased at the time of death; or
• was party to a registered personal relationship, or
• was party to a significant relationship, within the meaning of the Relationships Act 2003, with the deceased immediately before death that either;
  • existed for a continuous period of at least 2 years; or
  • resulted in the birth of a child.

NOTE: The way you own assets may also affect how your assets are distributed. For example, jointly owned assets automatically pass to the surviving owner(s) under the survivorship rule.

For more information, see FAQ What happens if I don’t have a Will?

Preparing your own Will by using a generic do-it-yourself ‘Will kit’ is not recommended. A Will must follow a strict legal format, otherwise the Courts may decide it is not valid. If your Will is thought to be ‘not valid’ then your assets will be distributed according to a predetermined formula and not as you intended or wished.

If you are not legally qualified to prepare a Will, then you risk making mistakes, creating uncertainty or losing opportunities for good estate planning.

In addition, unnecessary costs and delays in administration may result from problems associated with homemade Wills. It is easier and cheaper to ensure that your Will is correct whilst you are alive, than have your executor try and fix it after you die!