The biggest mistakes people make with their wills

2. Not being specific enough

This will come in particularly handy when you have adult children. If you die intestate, the distribution of your assets is governed by strict Victorian rules. You can’t disinherit adult children, they are entitled to at least one-third of your estate irrespective of whether they are in financial need – which means that some of your children will receive nothing. You can, however, leave a discretionary legacy to an adult child and still satisfy the rules for intestacy distribution.

By not being specific enough with your gifts, you may inadvertently cut out people you don’t intend to. One common problem is people who include their house in their gift to one child but forget to say anything about the other children living in that house. This will mean that those other children won’t get a share of the house, even though it is a gift from you. However, you can avoid this by being specific and including something like “I give my son John Smith my house at 3456 Plenty Road, Melbourne”.

If you have more than one house, you will need to be very specific about which house is being left to whom. If you don’t, the Court may distribute all of your houses amongst your children equally – so if one child lives in what was your parents’ house with their siblings, they are likely to get an equal share of that house as well. An exception to this is where you have a child who chose not to live with the rest of the family. If they receive an inheritance, but choose not to live at home or be involved with the rest of the family, they might find their siblings trying to force them out of the house after your death.

Make sure that all property is described as specifically as possible, and that you leave the rest of your estate to those people you intend to.

3. Not using a proper will

It is very easy for someone to create their own will on a computer and be done with it. However, unless they have had one prepared by a lawyer, this may not be legally binding. The law requires that a will must satisfy several requirements, such as: it must be in writing; it must be signed by the person making the will (the testator); and that it is witnessed. There are other requirements depending on your state or territory of residence.

You cannot use old wills either – you have to start again with a new one. As for the contents of your will, remember that there are Victorian rules about what you can and cannot do with it – so don’t try to cut out someone, or leave them nothing by mistake!

4. Not updating your will after a divorce or remarriage

Property acquired by either spouse during the marriage is presumed to be owned equally, regardless of whether one spouse earns more than the other. If you are in this position, and think that your net assets may not be divided equally when you die, put something into your will which recognises this and what you would like to happen.

Divorce is not the only reason for updating your will, you should also do it if there are changes in your financial position (for example, if you inherit money). A better solution might be to make a new will rather than changing the old one. However, if you want to do that, make sure it doesn’t fail, as there are some common mistakes people make.

This is an example of the kind of sentence you can use in your will to delegate authority to deal with your assets after your death:

“I give my executor Power of Attorney over my estate to execute any valid transaction necessary to maximise the net value of my estate and/or deal with my debts and liabilities”.

5. Not updating your will after a major life event

Apart from divorce or remarriage, the other reasons to update your will are: having children; setting up trusts; making gifts; paying off debts; losing assets (for example, due to fire); gaining assets (for example, due to a bonus); change of address; buying or selling property.

Sometimes people don’t update their wills because they are afraid that if they do so, they will have to pay more tax. Sadly, this is the wrong way around – you should be looking at ways to cut your estate costs by making changes in your will.

6. Leaving out the people who matter most

Sometimes, you might know that although your will says “I give everything to my children”, you also want to leave something else to another family member or friend who is not mentioned in your will. As we’ve already seen, it’s a good idea to put in some words which say you want your executor to deal with this. But if you don’t, and something happens to that person after you die, that item could end up going back into the pool of assets for your children or other named beneficiaries (if you have any).

On top of this, it means they may not be properly provided for – which is not nice for them, and not what you wanted to happen.

7. Not getting someone to act as executor

If you haven’t written your will or it hasn’t been prepared correctly, your loved ones may have to go through a legal process called “probate” – which can be costly and time consuming. By appointing an executor who can act quickly, you can save yourself and your family distress. Make sure that the person you choose is up to the job – they need to be organised, not in financial difficulty themselves (if they are, they may have to go through probate too), and willing to say when they don’t understand something.

8. Making it clear who the beneficiary of a bank account or policy is

When someone dies with an account, for example in a building society, most banks have the right to close the account down. If it’s your final will and testament that sets out who you want to inherit that money, then they can use that document to claim all or part of it.

A will isn’t the only place to put this information – you could also do it in a separate record which you keep with your important documents. But if there are so many accounts that you can’t remember what’s where, it may be easier to write this down somewhere easily accessible, like on the top of your bank passbook.

9. Not adding an executor’s address

If you don’t name an executor (which can be done in your will) and die without one, the only person who can deal with probate is someone called “the administrator” – which could be a solicitor. If it turns out that there are assets to divide up, they’ll probably appoint someone suitable to do this, but it’s important to remember that you won’t have a say in who this will be.

Remember that if a person named as executor is unable or unwilling to apply for probate, the administrator may use their discretion and choose another suitable person. But they should give priority to your wishes by looking at who you have named in your will.

10. Making it too complicated

Although you may want to play with all the different possible options for how your estate is divided up, or choose very specific gifts for each member of your family, what’s really needed in a will is something simple and straightforward. If you can’t do this yourself, ask an expert to help you.

If you have a will but it’s become too complicated, or your circumstances have changed since making the will and there are no other instructions for what to do next, you can ask a solicitor to help you make a “codicil”. A codicil is like an amendment to the will – it says what should happen now.

The codicil can be added to the original will or written on a separate sheet. The document must then be signed and witnessed in the same way as your will – it’s worth noting that the witnesses should know the content of what they’re witnessing to, so it might not be appropriate for them to witness something like “my will”.

There are other reasons why you might want to write a codicil, but what’s important is that it doesn’t change the original will. Anyone can create one – children can do this themselves if they’re over 18.

However, codicils aren’t really used very often because it can be so hard to understand them and work out what they’re meant to say.

The general rule is that, when no one has written a will or created a codicil for them, what happens next depends on whether or not you have children.

When there are no children

When someone dies without leaving any money at all, the person who should deal with their estate is called an “executor”, and that’s likely to be a friend or family member.

It doesn’t matter who you chose as executor, the person just has to agree to do it and then can deal with probate themselves if necessary.

Confusingly, people sometimes talk about executors as though there’s only one. But if they’ve