Making a will is about more than acknowledging you mortality. It is a way of acknowledging those who matter to you in life, and of providing peace of mind for both you and those you care about. Drawing up a will ensures that your assets will be distributed in the correct manner, that a person you trust is appointed to carry-out your wishes, and that other details such as funeral arrangements are carried out as you would want.
In NSW, if you do not have a written will your assets will be distributed according to the rules established by an act called the Wills, Probate and Administration Act 1898 (NSW). These rules are called intestacy rules and apply when you die intestate ie without a will. Primarily, the rules set out how your assets will be divided between family members. Basically, they work to exclude non-family members and organisations you may have wished to leave money, and they apportion bequests according to mathematical formulae.
The intestacy rules, therefore, will pay no heed to your wishes as to the division of your assets between family members. Nor will the rules accommodate same sex relationships, non-family carer relationships, ex-spouses, or perhaps that charitable institution you promised to leave money. So, if you want to ensure your assets are distributed in the manner you deem most appropriate, a valid will is the only way to do it.
While a will must be in writing to be valid, there is no legal requirement that a solicitor draw up your will - anyone over 18 (or under 18 years if married) and of sound mind can have a will, and can write it themselves. In many circumstances it is preferable, however, that a solicitor have input into the writing of your will because it is easy to make a mistake. And if you make a mistake drawing up your will, you might make the will invalid in its entirety (or in part), or you might give affect to a distribution of your estate other than you intended.
It is particularly important that you have input from a solicitor if you have a large number of assets, or you want to put complicated arrangements in place. A more complicated distribution of your assets includes instances where you wish to give assets to a person or an institution ahead of your immediate family, or where you want to give assets to a child (this could, for example, involve the establishment of a trust).
If you are in a same sex relationship you should certainly have a will drawn up by an experienced solicitor, because your partner will be excluded as a beneficiary by the rules of intestacy. While the law has changed to allow that the intestacy rules cover de facto partners, a de facto relationship by definition does not include same sex partnerships. If no will has been prepared, the only course for a same sex partner is to consult a solicitor and take the matter to court. In some circumstances such a course might be successful, but it takes a great deal of money and time to litigate and the easier option is to arrange for a solicitor to draft a will in the first place.
If there is no will and there are no family members closer than a second cousin the intestacy rules will not be able to distribute the assets at all. Instead, everything will automatically pass to the Crown. Those who think they have a claim on the estate then need to apply to the NSW government for a share of the assets. This is a relatively lengthy and costly procedure avoided if a will exists.
You should also be aware that, even if you already have a will you may need to ask a solicitor to create a new will or codicil to your original will. Firstly, if you wish to change your will you need to either draft a new will or have a codicil to the will drafted - changes made directly to the original will after it has been signed are of no affect. A codicil is a document that amends or adds to the original will. It requires many of the same processes that the original will requires and must also be in writing.
Secondly, a completely new will is necessary if your original will has been revoked or cancelled. This occurs for a number of reasons, including your subsequent marriage or divorce, or a variety of other, subsequent actions on your part. Your solicitor can run through these acts of revocation and cancellation with you in greater detail at the time your will is drafted. If a solicitor did not draft your original will, it might be a good idea to check whether the will is still valid.
Finally, it is worth noting that in NSW you also have the option of creating what is called a living will, otherwise known as an advance directive. A living will can ensure your wishes are carried out while you are alive but incapacitated and in need of care. It sets out the medical treatment you prefer, and while not legally binding in itself, it is strong evidence before a court or a medical board. A living will can, therefore, be strongly persuasive upon those making treatment decisions. A solicitor can help you create an effective living will.