Making a will
Beneficiaries of your will
Who is a beneficiary?
A beneficiary is any person or organisation who is left anything under a will.
Note: If a person is named as a beneficiary, they should not be a witness to the signing of the will. If they are the witness, they – and their spouse, civil union partner or de facto partner – will usually lose any entitlement under the will (see: “Who can be a witness to my will?”).
How do I gift property to children in my will?
If your child or children are too young to receive the property outright, you can establish a testamentary trust, and appoint trustees to manage it on your kids’ behalf.
For example, a will can state that when a child reaches the age of 18 they’ll be paid a certain amount. In the meantime, the money will be held in a trust. A trustee will be appointed to invest and look after the money on behalf of the child. The trustee can use some of this money to pay for the child’s welfare, including living and education costs (see: “What is a trustee (and when do I need to create a trust in my will?)”).
The child will get access to the money or property themselves when they reach the age set by the will.
Who will look after my children if I die while they are young?
You can appoint someone to look after your children after you die (called “testamentary guardians”) and leave them directions about how to take care of your children.
However, a testamentary guardian doesn’t have automatic rights to make guardianship decisions or provide day-to-day care of a child. They will have to apply to the Family Court for a Parenting Order to be formally appointed as a legal guardian. This application can be challenged by the surviving parent or other legal guardians (see: “Parents, guardians and caregivers”).
Appointing someone as a testamentary guardian is the best way you can express who you’d like to look after your children. The Family Court will take this into account when making a Parenting Order.
How long will it take for my beneficiaries to receive the money or property I want to gift them?
There can be significant delays from the time of your death until your beneficiaries actually receive any of your money or property.
Usually it will take at least 6 months, but it can take longer if there are any issues – for example if there are any challenges to the will.
In the meantime, how can I make sure my loved ones are provided for?
It’s a good idea to plan ahead to make sure your loved ones will be financially supported during this time, especially if they don’t have their own income or have been financially dependent on you.
If you have a partner, one way to do this is to have at least one joint bank account together. When one partner dies, any property (including money) that is owned jointly with the other partner will automatically belong in full to the surviving partner. This means that all the money in the joint account will immediately belong to your partner when you die.
Another way to do this is to add a direction in your will that your loved ones can continue to live at your property for a set period of time. However, this can be complicated, so it’s best to get a lawyer’s advice if you’d like to include this in your will.
In some cases, your executor might need to distribute money earlier (e.g. for emergencies, medical expenses, or ongoing necessary expenses like paying for your children’s school fees). To distribute any money from the estate before probate is granted, your executor will have to get the approval of all beneficiaries. They take the risk that if someone does end up claiming against the estate, the executor might be personally liable to pay back any money that was distributed before probate. Your executor would likely have to navigate this with the help of a lawyer.