Wills & Estates

Life can be unpredictable, but we can help you to plan some aspects of it. A well drafted will and estate plan tailored to your circumstances can help protect and provide certainty for your loved ones when you die. If you need assistance handling your affairs as you age, or if you become incapacitated, a power of attorney or enduring power of attorney enables somebody you trust to step in and manage certain matters on your behalf.

All families are unique and there is no one-size-fits-all formula when it comes to estate planning, but it is important to be guided by a professional to ensure your wishes are accurately reflected in the documents you prepare. If you are the executor or a family member of somebody who has died, we can also help you through the steps of administering and finalising the estate.

Why do I need a Will?

A will is important for every adult but especially so for those with complicated family relationships or complex assets. A will enables you to formally record your wishes for the distribution of your assets when you die, and to appoint one or more executors to manage and finalise your affairs.

If you die without a will, you are said to die “intestate” and state legislation in Queensland determines who inherits your property, which is usually divided between the deceased’s spouse (if any) and their children (if any). Sometimes this distribution reflects what you might have otherwise chosen had you left a valid will, but other times it does not. The statutory formula of distribution does not take account of your unique circumstances and administering an intestate estate is generally more difficult, expensive, and time-consuming for your family.

Having a will gives you a choice about who receives your property and who oversees your affairs. Further, a carefully drafted will can help you to protect assets and vulnerable beneficiaries, set up trusts for dependent children and, in some instances, implement a more tax-effective distribution of your property.

Family Provision Claims

The law in Queensland provides an avenue for someone to contest the provisions of a will. Basically, if an “eligible” person thinks that they should have received more from a will for their support and maintenance, they may be able to make a family provision claim through the Supreme Court.

In Queensland, only the deceased’s spouse, child, or dependent are eligible to make a family provision claim. A “spouse” includes a de facto partner, and perhaps more surprisingly, a former spouse. This means that your ex-husband or ex-wife could be eligible to contest your will. A “child” means a biological, adopted, or stepchild. The final category is the most difficult to define, because a “dependent” includes anyone who depended financially on you. This means that a more distant relative or friend could contest your will, if they can establish financial dependence.

Family provision claims are complex and time limits apply for making a claim. Whether you wish to make a claim or are an executor facing a family provision claim against the estate, it is important to get legal assistance as soon as possible.

Are you an executor who needs help administering a deceased estate?

When someone dies, one of the first steps is to obtain a copy of the deceased’s will. In this document, the testator nominates one or more executors to oversee the administration and finalisation of their affairs.

An executor has significant power over the deceased’s property. Their primary responsibility is to faithfully fulfil the terms of the will. This means ensuring that property is looked after following the testator’s death, and then distributing it according to the will. However, when it is not possible to follow through on these wishes (such as when the debts of the estate exceed the assets), an executor has the power and obligation to discharge these debts at the expense of delivering bequests. An executor also has the power to overrule the terms of the will if necessary to settle a claim against the estate, such as a family provision claim.

Usually, banks and other organisations will not release large assets for distribution to beneficiaries unless the executor has obtained probate. In such cases, the executor must apply to the court asking it to confirm the validity of the will. This requires the preparation and filing of a number of legal documents and paying the appropriate fee. Once granted, probate empowers the executor to deal with the deceased’s property according to the will.

Sometimes it is not necessary to apply for probate, especially if the only significant asset of the estate is a property that is jointly owned with another person. In that case, the surviving owner takes full ownership of the property, and there is usually no need for the executor to seek probate.

While some people do undertake all the duties of an executor by themselves, most people find that they need the assistance of a solicitor, particularly if they need to apply to the court for probate.

If you need assistance contact [email protected] or call 07 3800 5055.