What age should you start thinking about making a will?

I've been putting off doing my will for years, and I'm not alone in my procrastination.

While it's not pleasant to think about death, no-one has yet managed to avoid it. 

Having a plan can give you peace of mind and ensure your loved ones are provided for.

"The mess you will leave behind for people who will care for you is so much greater if you don't take steps to put that plan in place," says Kimberley Martin, an estate planning lawyer based in Hobart.

When do you need a will?

Phillip McGowan, an accredited specialist in estate law based in Sydney, says the earlier we start planning the better.

"From my perspective, once you turn 18, and you've got a job, that's probably a starting point when you think about putting in place an estate plan," he says.

While not everyone's going to be that organised, wills are particularly important if:

• You have significant assets like property, shares or cash;
• You've received an inheritance;
• You have children; or
• You have a blended family.

What happens if you die without a will?

If you die without a will, your assets will be divided according to the intestacy laws in your state or territory.

"If you have a spouse or de facto spouse, they usually have primary entitlement. Children or other lineal descendants like grandchildren may share the estate with a spouse," Mr McGowan says.

"If there's no-one in those categories, the law then looks to parents, brothers and sisters, grandparents, uncles and aunts, nieces and nephews. Some states extend the category of beneficiaries down to cousins."

One thing to consider is that your children may be entitled to some of your estate. It may prevent your spouse from accessing that money to pay down debt, manage expense or run the family business.

Another potential issue is that a relatively new spouse could be entitled to your assets over your family.

"Imagine that you're in your 20s or your 30s and you've been in a relationship for two years and you're not sure of the longevity of that relationship," Ms Martin says.

"If you die and you're in a de facto relationship, the law will most likely recognise that person as being entitled to all of your assets.

"For most people in their 20s and 30s, if you talk to them about who they'd like to receive their assets, it might not be their de facto partner."

Estates without a will are also more difficult to administer. It can involve lengthy court applications, legal costs and disputes, Ms Martin says.

Finally, a will can help parents plan for who will look after their children should they die.

"Under your will, you can nominate what's called a testamentary guardian. That's someone you nominate in the will to have the parental responsibilities for a child under 18 years," Mr McGowan says.

"Generally, parents will appoint a guardian so that if they're both deceased, the guardian will step into that parental role."

What happens with your super when you die?

Importantly, super doesn't automatically fall into your estate once you die. Instead, your fund will follow superannuation law to distribute any funds or insurance benefits.

To avoid leaving that important decision to your super fund, you have a couple of options:

• You can make a binding death benefit nomination with your super fund. Keep in mind your nomination will only be valid if you nominate a "dependant" such as your spouse or children.
• You can nominate your legal personal representative (the executor of your estate) who will then distribute the death benefit in accordance with instructions in your will. 

The key difference is that you have additional flexibility if your super death benefit is paid into your estate and you have a valid will.

That's because beneficiaries in your will don't need to be dependants: they can be friends, family or anyone else.

The problems that can arise with super

If you don't make a binding death benefit nomination, your super fund will look to see if you have a partner, children or any other dependants.

If you don't have any dependants, the money will be paid into your estate.

"If you are a young worker, and you pass away, and there could be a significant life insurance payout as part of your super, but you may not have any superannuation dependants to whom the super fund can pay the death benefit directly," Mr McGowan says.

"In these cases, the benefit will have to be paid into your estate. That's the reason you should have a will, so your will can distribute the super death benefit to your intended family members or friends."

One high-profile case highlighting the issues with death benefit nominations involved 23-year-old Victorian court clerk Ashleigh Petrie, who died in 2018.

"There was an incident where a magistrate was in a relationship for seven months with one of the court clerks [Ms Petrie]," Ms Martin says.

"She died and he claimed all of her superannuation, regardless of the fact that she'd completed a death benefit nomination in favour of her mother." 

Ms Petrie's mother is reportedly appealing the decision.

To avoid this situation, Ms Petrie could have directed her super fund to pay out any death benefits to her estate and prepared a will that specified her mother as the beneficiary, Ms Martin says.

"When a person dies, superannuation legislation says your superannuation can go to your spouse, including a de facto partner. It can go to your children. Or it can go to somebody with whom you're in an interdependent relationship," she says.

"Outside of that, the only other avenue is to send it to your estate. And if you send it to your estate, there is where she could have completed a will sending that superannuation money to her mother."

How to put together a will

• You can get your will written by a solicitor for a fee.
• You can get your will written by a public trustee in your state or territory. It may be free if you are a pensioner or if you nominate the public trustee as the executor of your will. Keep in mind that the Public Trustee may charge significant fees for its executor service. 
• You can write your will yourself or use a will template or kit. While you may save money, it's important to ensure your will is valid. ASIC's MoneySmart recommends checking DIY wills with the public trustee in your state or territory.

This article contains general information only. You should consider obtaining independent professional advice in relation to your particular circumstances.