Wills and powers of attorney: deciding while you can

A will is a legal document that says what you want to happen to your assets when you die — Moneysmart's definition, near verbatim. It speaks for your estate — the assets you leave behind — and per the same guidance it can cover how those assets are shared, who would look after your children if they're under 18, trusts, gifts to charity, even funeral wishes and access to your social media accounts. It also names your executor — the person or organisation that carries the instructions out.

What makes it more than a wish-list is that it's a legal document with formal requirements — and Moneysmart's warning is blunt: a will that's not done properly may be invalid. Those requirements, like most of estate law, are set at the state and territory level, which is why every safe version of doing it cheaply still ends with a professional's check. And even a valid will isn't beyond argument — people can challenge (contest) a will in many different ways.

The sharpest lesson in the guidance, though, is what a will doesn't reach. Your will does not automatically cover your superannuation: super sits with your fund, you steer it by nominating beneficiaries through the fund itself, and one nomination option — your legal personal representative — routes the money into your estate; the full machinery is in Super death benefits. Any life insurance held inside super is paid as part of that same death benefit, on super's rails. And a family trust usually keeps running after your death — the trust deed, not your will, decides who receives trust assets.

Die without a valid will and you die intestate — the legal name for exactly that. Moneysmart's description of what happens next is a single blunt clause: the government decides who gets your assets. Not a person weighing your story — a default order set out in law where you live, applied to the estate as it stands.

A default can be applied precisely and still land wrongly, because it can't know anything about you. It doesn't know the blended family, the estrangement, the friend who was really family, the careful balance you'd intended between the kids. Moneysmart's summary is that the process can take longer and may not be what you wanted — both halves of which are doing a lot of quiet work.

Nor is a will something only complicated lives need. The guidance notes that even a valid will can be contested in many different ways — and with no will at all, there isn't even a statement of your wishes for anyone to defend. The repair is unglamorous: make the document properly, while everything is calm, and keep it current as the next section's triggers land.

A will only ever speaks at death. The document that speaks while you're alive is a power of attorney — a legal document letting someone you choose make financial and legal decisions for you. The distinction that matters is general versus enduring. A general power of attorney operates for a set time and, in Moneysmart's words, ends if you lose the ability to make decisions yourself. An enduring power of attorney continues to operate exactly then — which makes it the only one of the pair that helps in the situation this page worries about.

An attorney under these documents handles the financial and legal side. Medical and lifestyle decisions belong to a separate enduring document — Moneysmart's own page writes it as "enduring guardianship (medical power of attorney)", one document wearing two names — which can decide about treatment, health care, where you live and support services, and expressly cannot make financial decisions. And the caveat again, this time straight from the source: each state and territory has different rules for setting up a power of attorney. Treat everything here as the shape, and make the local version properly.

Skip the documents and the gap-filler is slow and impersonal. Once you lose decision-making capacity, you cannot put these arrangements in place — the door closes exactly when you'd want it open. Someone may then need to apply to act for you, the law must approve that appointment, and it can take time. During that time, Moneysmart warns, no one may be able to access your accounts, pay your bills, manage your affairs or make important health and lifestyle decisions — with the stress and conflict landing on the people around you.

A will describes a life, and lives move. Moneysmart's list of update triggers: you get married, divorce or separate, have children or grandchildren, experience a major financial change, or lose your spouse or another person named in the will. What any one of those events legally does to an existing will is a state-and-territory question — one more reason the safe reflex after a big life event is review, not assumption.

The documents also have to be findable. Store your will in a safe place and tell someone you trust where it is — Moneysmart's suggestions run from a fireproof safe at home to your solicitor, the Courts or the Public Trustee. Listing your important documents and where they're kept helps your family and your executor; a perfectly drafted will nobody can find does exactly nothing.

Two maintenance jobs sit beside the will. The super death-benefit nomination ages on its own schedule: binding nominations need to be kept up to date, the lapsing kind expire after a set period unless renewed, and a non-binding nomination only ever guides the trustee — Super death benefits has the detail. And the drafting itself: a solicitor prepares wills for a fee, some people qualify to have theirs prepared by a Public Trustee at no cost (eligibility rules differ by state and territory), and DIY will kits exist — with Moneysmart's proviso that a kit will should still be checked by a solicitor or Public Trustee, because a will not done properly may be invalid.