Benefits of a Will

9 October 2025 in Wills and Estates Law | 7 min read | skip to FAQs

This article discusses the benefits of having a will, what can and can’t be included in a will and when to consider changing your will. BSM Sydney Lawyers offers inexpensive, fixed fee wills drafted by experienced estate lawyers.

What is a Will?

In simple terms, a will is a document that provides for the distribution of a person’s assets following that person’s death. A will also outlines who is responsible for administering your will. A will is drafted to outline the specific intentions of the will-maker and must be signed and witnessed.

A will assigns executors and beneficiaries. An executor is best described as a person determined by a will-maker to be responsible for the administration of their will. As such, an executor is responsible for the management and distribution of a will-maker’s property after they die. For more information about the responsibilities and duties of an executor, see our dedicated article on the role of executors.

A beneficiary is a person who is entitled to certain benefits from a will. For example, a will may provide that one of its beneficiaries is entitled to the deceased’s house or car. Wills can provide for multiple beneficiaries and divide assets between them in accordance with the will-maker’s intentions.

Benefits of a Will

Dying without a will, also known as dying intestate, can lead to financial complexities and legal uncertainties. For more information on dying without a will, see our dedicated article on this subject. The benefits of having a will extend beyond mere asset distribution and have significant implications for individuals and their loved ones. Other benefits of a will include: 

Control of Asset Distribution

1. In the absence of a will, intestacy laws dictate the distribution of assets. This may result in unintended outcomes and the distribution of assets may not honour your wishes.
2. Among other things, under Chapter 4 of the Succession Act 2006 (NSW), spouses automatically inherit the estates of their partners in the absence of a will. However, children may be excluded from inheritance unless specified otherwise in the will. It is important to note that certain people, including children, have the right to appeal a will from a parent. For further information, see our dedicated article on can grandchildren challenge a will.
3. If an individual dies leaving no person who is automatically entitled to the estate, the State is entitled to the whole estate. This i

Choice of Executor and Trustees

1. Making a will enables individuals to appoint executors and trustees of their choice to administer their estate and manage testamentary trusts.
2. Another benefit of a will is that an individual can ensure that their estate is handled according to their wishes, avoiding the appointment of an independent court-appointed administrator.

Special Powers and Directions

1. Individuals can use their will to confer special powers on executors, such as dealing with specific assets like shares and businesses.
2. Additionally, wills can include directions regarding the disposal of bodies after death, although importantly these directions may not always be legally binding.

Avoiding Intestacy Difficulties

1. The absence of a will can lead to complications in administering an intestate estate, resulting in delays and increased costs. 
2. Without clear instructions, establishing the rightful beneficiaries and distributing assets can be challenging and there may be potential disputes and legal proceedings.

Debt Management

1. Another benefit of a will is that it provides the opportunity to specify how debts should be managed, offering greater flexibility than the default provisions outlined in the Probate and Administration Act 1898 (NSW). This allows individuals to tailor debt repayment arrangements according to their preferences.

Can I dispute a Will?

There are various grounds upon which you can dispute a will. For further detailed information see our article Contesting a Will in NSW .

What Assets can and cannot be Included in a Will?

The nature of the asset and its ownership at the time of death will determine whether an asset can and cannot be included in a will (Succession Act 2006 (NSW), s 4). This concept is guided by the nemo dat rule, which states that “no one can give what they do not have”. As such, assets are categorised as estate assets and non-estate assets. It should be noted that understanding and disclosing both the assets and liabilities are fundamental in drafting a will (see also Probate and Administration Act 1898 (NSW), s 81A).

Estate Assets (which can be Included in a Will)

Estate assets are assets owned in individuals’ personal names and form part of their estate. These assets can be disposed of by a will and typically include:

1. Real Estate: Properties such as land, houses, or apartments held as sole owners. 
2. Personal Chattels: Items like jewellery, antiques, vehicles, and furniture.
3. Financial: Bank accounts, Shares, bonds, debentures, and cash investments held individually. 
4. Trust Interests: Loans made by individuals to a trustee of a trust, as well as income and capital allocated from a trust.
5. Tenants in Common Interests: Shares in assets held jointly with others as tenants in common, where each tenant has a separate and distinct share that passes according to their will.

Non-Estate Assets (which can’t be Included in a Will)

In contrast, non-estate assets are controlled but not wholly owned by individuals and cannot be disposed of by a will. These assets include:

1. Jointly Owned Assets: Properties owned jointly with another person, such as the family home, where totality of their ownership passes immediately to the surviving joint tenant by the right of survivorship (see also Real Property Act 1900 (NSW), s101) and does not form part of the estate (Vagg v McPhee (2013) 85 NSWLR 154). 
2. Assets Owned by Entities: Assets held within partnerships, companies, or trusts, where ownership and control are vested in the entity rather than the individual.
3. Superannuation: Subject to member direction and trustee discretion, superannuation benefits may not form part of the estate but are distributed according to the fund’s rules or beneficiary nominations.
4. Life Insurance Proceeds: Depending on ownership arrangements, life insurance payouts may bypass the estate and be directed to named beneficiaries.
5. Pensions and Annuities: Account based pensions or annuities with reversionary beneficiaries are typically excluded from the estate and distributed directly to the named beneficiary.
6. Family Trust Assets: Unallocated assets of a family trust, which are controlled by the trust deed and managed by the trustee.
7. Business Interests: Ownership stakes in businesses are often governed by partnership agreements, shareholder arrangements, or trust deeds, determining their disposition upon death.

Digital Assets

The emergence of digital assets, such as cryptocurrency and online accounts, poses unique challenges as many virtual assets do not form part of the estate or cannot be gifted through a traditional will. For further information on the question of digital assets in wills, please see our dedicated article, digital assets in estate planning.

When Should I Update my Will?

There are a variety of circumstances where it is important to update your will.

1. You have a new child
2. You get divorced.  If you have a current will, it will remain in force when you divorce. You therefore need to redo your will.
3. When you get married. Conversely a current will be automatically revoked when you marry. You therefore need to update your will.
4. A beneficiary dies
5. You have more assets to distribute
6. You want to remove a beneficiary from your will
7. You want to add a beneficiary
8. You have sold a business
9. You have bought or started a business

How can BSM Sydney Lawyers assist you ?

BSM estate lawyers Sydney will advise you of the benefits of a will. Our experienced estate lawyers always take the time to listen carefully and thoroughly listen to your needs and then advise on the most appropriate documents and structure for you. Brander Smith McKnight’s experienced Sydney Lawyers meticulously draft your documents and then provide you with the opportunity to review these prior to finalisation. We pride ourselves on creating watertight documents to minimise future risks in a cost-effective manner with a fixed fee. Compare our prices. We also offer inexpensive packages which include the drafting of documents related to a will, including Enduring Guardianship and Power of Attorney.

Brander Smith McKnight Wills and Estates Lawyers also provide professional legal advice and advocacy for executors in any estate including distribution and contested estates. Our estate lawyers offer a free 20-minute consultation to discuss your personal needs and formulate a plan for you.

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BSM Lawyer Sydney has offices are conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.