Do You Need a Solicitor for a Will? Choosing Wills and Estates Help in Melbourne

By Eleni Papadakis

The question underneath the question

If you are reading this, you have probably already decided you should make a will, and you are standing at a fork with three paths and no signposts. One path is a form you buy and fill in yourself. One is a solicitor. One is Victoria’s public trustee. Each of them has an interest in you choosing it, which is exactly why the honest version of this question is hard to find.

The question you are actually asking is not whether a solicitor is strictly necessary. It is whether the cheap option is safe and whether the expensive one is worth it, and nobody answers that honestly, because everyone answering is selling one of them.

So this article does three plain things. It sets out what a will has to be to be valid in Victoria. It lays the three routes side by side without pretending one is always right. And it gives you the questions that tell you which group you are in. None of this is legal advice, and the person who drafts your will is the one who applies the rules to your circumstances.

What a will actually requires in Victoria

Before you judge any of the three routes, it helps to know how small the technical requirement is. It is smaller than most people expect, and that is what makes the do-it-yourself route a real option rather than a false economy.

It is a signed and witnessed document

In Victoria, a will has to be in writing, and it has to be signed by the person making it in front of two or more witnesses, who also sign. That is the core of it. It is good practice to date it at the time of signing, and where there are several pages, to sign at the foot of each page using the same pen.

Witnesses can sign remotely in the circumstances the rules allow, using an audio-visual link, where one of the witnesses is a lawyer or a justice of the peace and the other requirements are met. The execution of a will is not a complicated legal act, and anyone who tells you otherwise is selling something. It is what goes inside the document, and who has to carry it out, that carries the weight.

You have to be able to make one

There is a second requirement, and it is about the person rather than the paper. To make a will, you have to understand what a will is and what it does, have a rough idea of what you have to leave, and hold in mind the people who might reasonably have a claim on it. Lawyers call this testamentary capacity, and it is the issue that most often catches families out.

It is worth thinking about early if the will-maker is older or unwell, because capacity is assessed at the time of signing. Where a signing is unusual, or a challenge is foreseeable, an affidavit from a doctor who assessed capacity at the time can head off a later dispute, so it is worth asking for a doctor who does these assessments routinely. A person over eighteen with capacity can make a will; below that age, a court order is generally needed.

The three routes, honestly

This comparison is the one the search results never make, usually because the page making it is selling one of the three. Laid out plainly, each route is right for somebody.

A will kit

A kit gives you a document that can be executed validly, provided you follow the signing rules above. What it does not give you is anyone checking whether the words do what you think they do, or noticing the thing you have not thought about at all.

Some situations genuinely do not need that check. A simple estate, a settled family, nothing held in a way that needs untangling, and no one who needs special provision: there a kit is a fine answer. What a kit cannot do is tell you that your situation is simple. That judgement is the one it leaves with you.

A solicitor

What a solicitor adds is easier to see as work than as status. They ask about the assets that do not pass through a will at all: property held jointly, superannuation, trusts and companies, insurance nominations. They test whether your intended arrangement will survive someone reading it with an interest in disagreeing. And they can hold the signed original somewhere safe, which turns out to matter more than most people expect.

Then there is a trigger list, and it is worth being blunt about it. If any of these is true, the kit conversation is over. You own property, a business, a company or a trust. Yours is a blended family, or there are children from more than one relationship. Someone depends on you for ongoing support. There is a relationship in which someone might contest your decision. Or you simply want a person, not a form, to have checked it. Any one is reason enough.

Victoria’s public trustee

State Trustees is a Victorian state-government-owned company, originally the Public Trustee of Victoria. It prepares wills and powers of attorney, and it can act as executor and administer an estate.

It is the route for a reader who wants an institution that will still be there: not an individual who may retire, not a family member who may not want the job. The obvious trade-off is that some control passes to an institution rather than staying with a person you chose, and that is a fair thing to weigh. No figure is needed here, because fees are not the difference between the routes.

The part nobody asks about: who carries it out

The document is the easier half of this. The half that decides whether any of it works as intended is the person who acts on it after you are gone.

The executor does the actual work

An executor deals with the estate after a death: gathering the assets, paying the debts, distributing what is left, often in the middle of a period when everyone involved is grieving. They need to be over eighteen, and they should be asked first and should agree, because it is not a small favour.

The work can take a long time and a great deal of correspondence. One point most people never consider: a will remains valid even if no executor is named. Naming one who is willing is not a legal requirement, it is what saves everyone a mess. An executor only deals with the estate after a grant of probate from the Supreme Court of Victoria.

Family member, lawyer or institution

A family member or friend costs nothing and is usually the right answer for a straightforward estate, but they carry the work during a hard time, and that can strain a relationship. A lawyer knows the process and can be named alongside a family member, so the family keeps the decisions and the professional does the paperwork. An institution is the answer for an estate with no obvious person, for a family spread across the world, or for someone who would simply rather not put the burden on anyone.

One practical fact worth knowing: an executor is not automatically paid for the role. Payment can be provided for in the will, agreed by the beneficiaries, or ordered by the court. That is a reason a family member may not want the job, and a reason to say so in the will if you want a professional to be paid for doing it.

Where the will goes, and what sits beside it

Two quiet practicalities. One is about finding the document. The other is about the document that does a job a will cannot.

Storage, and telling someone where it is

A signed and witnessed will that nobody can find is a problem for the people left behind, and it is entirely avoidable. Keep the original somewhere findable, and tell at least one person where that is.

A firm that drafted the will can often hold the signed original, and for some people that is one of the quieter reasons to use one. There is no need to overstate it. A short note to the person you have named as executor, giving the location, is most of the benefit on its own.

The two documents that go with it

A will deals with what happens after death. It does nothing about a period when someone is alive but cannot make their own decisions. A power of attorney appoints someone to make financial or personal decisions. A medical treatment decision-maker makes medical decisions. Both are made while the person still has capacity, and that is the whole point: they only work if they are in place before they are needed. The Office of the Public Advocate publishes information on all of this, and it is worth reading well before it is needed rather than in the week it is.

The fee question, answered as a question

There is no number in this article, and that is deliberate rather than evasive. Will-making fees are set by each firm, they are not regulated, and they move with the complexity of the estate. A figure quoted for a simple will is not the figure for one that needs a trust considered, and a number accurate when someone last asked may not be accurate now.

Three questions get to the real answer. Is the fee fixed or hourly, and what does it include? Is storage of the original included? And if the firm is to act as executor, how is that charged, and is it a percentage or an hourly rate?

One more thing worth asking: a free or bundled will arrangement is usually attached to something else, and it is fair to ask what that something is. And if you want a low-cost way to find out whether your estate is simple enough for the simpler route, the Law Institute of Victoria runs a Find a Lawyer referral service that puts you in front of a lawyer for a first consultation.

Sort the estate first

One warm restatement, and it is the whole article in a line: work out what you own and who depends on you before you decide who drafts anything, because that is what decides the answer.

The three-line version of the decision. A kit if the estate is simple and you are confident. A solicitor if anything on the trigger list is true. The public trustee if you would rather an institution carry it than a person. There is no wrong answer here, only a better and a worse fit.

Then one gentle action, and it is the part people skip. Name the person you would ask to be your executor, and actually ask them. It is a short conversation, easier to have than you think, and it turns a name on a page into someone who has said yes. The rest of the estate can wait. That one conversation is worth having first.

Sources: Victoria Legal Aid, making a valid Will, changing a Will, and if someone dies without a Will. Supreme Court of Victoria, probate. State Trustees, wills, powers of attorney and executor services. Law Institute of Victoria, Find a Lawyer Referral Service.