Category: Wills & Estates

In our experience, most people do not have an understanding as to the process involved in administering a deceased person’s estate – that is, until friend or family member passes away and they find themselves with a mystifying process ahead of them which might take some time to get their heads around.

One of the most important, but most often misunderstood, aspects of the estate administration process is Probate. In fact, we have found that many of our clients, on visiting us for the first time for advice after a family member has died, tend to conflate Probate with the estate administration itself or think that probate is just another name for estate administration.

Is a Grant of Probate Always Necessary?

In fact, Probate is just one step that may need to be taken during the administration of an estate, and while very important when necessary, in some estates it is not even required. A Grant of Probate is in fact a document issued by the Supreme Court of Queensland, which looks like a certificate with a copy of a deceased person’s Will attached. In issuing a Grant of Probate to an executor, what the Supreme Court is saying is that the deceased person has in fact died, that the Will attached to the Grant is authentic and that the executor to whom to Grant has been issued is who they say they are and is the person who is entitled to be executor under the Will.

When people learn this, their first response, particularly where the estate and family situation of the deceased is simple, is to say ‘I know that I’m entitled to be the executor because it says so in the Will, I know that the Will is authentic because I obtained it from the deceased’s solicitor and I know that the deceased has passed away because I attended their funeral’. Quite correctly, they are questioning relevance of a Grant of Probate to their situation. In situations where the sole executor of a Will is also the sole beneficiary to receive the assets of the deceased, applying for a Grant of Probate often seems unnecessary red tape to the executor.

The first thing to remember here is that a Grant of Probate is not just a document for the benefit or peace-of-mind of the executor, which is something we will touch on later. Citing a Grant of Probate will be a requirement of most financial institutions an executor needs to deal with when collecting in the assets of the deceased for distribution. This is a matter of risk for these institutions, so before they hand over access or transfer many thousands of dollars’ worth of the deceased’s assets to the executor, they quite understandably want to see proof, in the form of a Grant of Probate from the Supreme Court, that the deceased has passed away, that the executor is who they say they are and is entitled to fulfil that role and that the Will is authentic. In fact, if an institution requires citation of a Grant of Probate to deal with an executor or allow an executor to deal with estate assets, obtaining such a Grant becomes a de facto requirement as these institutions will flat out refuse to deal with an executor who cannot show them a Grant.

Probate Floor Value

The way in which these institutions balance this risk against simplicity is to use dollar value limits. While some institutions err on the side of caution and will always require a Grant of Probate to deal with an executor, most set a ‘floor’ dollar value of assets to be dealt with above which a Grant will be required. This is why even among people who understand what Probate is, many will be under the impression that it is required for ‘large estates’ and not for ‘small estates’. This is simplistic and not always the case, because the ‘floor’ dollar values prescribed by each institution refer only to the assets held by the institution in question.

Probate Floor Value Examples

To give two very simple examples – on one hand there could be a large estate where the assets are held by a range of different institutions, so that the value held by each of the institutions is less than each of their respective ‘floor’ values. This means that despite the large overall value of the estate the executor has ‘lucked out’ due to the dispersed nature of the assets and none of the institutions will require a Grant of Probate to deal with the executor. On the other hand, there could be a small estate where the majority of assets are bank accounts and term deposits held by a single financial institution, meaning that despite the low overall value, the ‘floor’ value of the bank in question has been exceeded and the executor will have no choice but to obtain a Grant in order to collect in and deal with those assets. This makes sense because when assessing their risk, a bank will see releasing $2,000 to the wrong person as relatively minor, despite the fact that the deceased might have had millions of dollars’ worth of assets stashed away elsewhere, whereas they will see the potential of releasing $60,000 dollars to the wrong person as having substantial ramifications, regardless of the total value of the estate.

Below are some examples of the ‘floor’ limits set by various financial institutions at the time of writing, noting that such values are of course subject to change at any time:

Most institutions set ‘floor’ limits of between $20,000 and $50,000, however retirement villages can be notorious for always requiring a grant of probate to release the exit entitlement of a deceased estate.

Probate and Joint Tenancy

One situation which may render a grant of probate potentially unnecessary is where the assets of the deceased were jointly held with another, for instance the deceased’s spouse, as joint tenants. This is because where a joint tenancy exists, the interest of one joint tenant immediately and automatically passes to the other upon the death of the first joint tenant, independent of any Will. In fact, it is common to see situations where a deceased held a very high value of assets, but where the residential property or bank accounts were held as joint tenants with another, and as such these assets automatically passed without any need for a collecting in or administration. As there are other ways of holding assets jointly, such as holding assets as tenants-in-common, which do not allow for an automatic passing of the interest upon death and do need to be collected in and administered by executors, it is important to speak to a lawyer at the outset of the administration process to gain a proper understanding as to what category of joint holding particular assets fall into.

Protection from Future Claims on the Estate

Aside from being necessary to deal with estate assets in certain circumstances, another reason to obtain a grant of probate is for the executor’s own protection and peace-of-mind. At Forge Legal, when we apply for a Grant of Probate on your behalf, we publish a notice in the Queensland Law Reporter giving potential creditors or beneficiaries a chance to send us particulars of their claims, and noting that you intend to distribute the estate upon the expiry of the notice period without paying anyone who has not given notice. This means that you will be protected from such claims later on, so long as you follow our instructions as to when you are safely able to commence the distribution. Without such a notice, a creditor could seek to make you personally liable for their claim in circumstances where the estate assets have been distributed without notice.

This raises another issue around the purpose of a Grant of Probate as discussed above: to certify that the deceased has passed away, that the executor is who they say they are and is entitled to fulfil that role and that the Will is authentic. As there is no central registry of Wills, these documents are often lost or overlooked, with nobody being the wiser until they eventually show up. Most estate solicitors have heard horror stories of an executor proceeding to collect in and distribute estate assets only to have a more recent Will (which supersedes any previous Will) show up in a filing cabinet or solicitor’s safe custody storage! Once the later Will is found and the assets are transferred to beneficiaries or creditors who will not relinquish them, it is already too late. Accordingly, obtaining a Grant of Probate provides executors with much needed peace-of-mind in the form of a ‘seal of approval’ (no pun intended, as Grants of Probate do indeed carry a literal seal) from the Supreme Court that they are safely and legitimately able to act in the capacity of executor. In circumstances where there are complex family dynamics in play or potential for a contesting of the will or family provision application, obtaining Probate obviously becomes all the more vital.

Intestate and Letters of Administration

While most prudent people always keep a valid Will in place, another situation to consider is that in which a person dies intestate, that is to say, without a Will. In these circumstances, the person who wishes to act as administrator, which is the equivalent of an executor in such circumstances, must apply to the Supreme Court for Letters of Administration. This is a very similar document to a Grant of Probate, it entails a similar application process and serves an equivalent role – to certify that the deceased has passed away, that the administrator is who they say they are and that they are entitled to act as administrator.

Regardless of whether a deceased passes with or without a Will, or whether the estate appears large and complex or small and relatively simple, it is vital that would-be executors and administrators speak with their solicitor as soon as possible after their friend or relative’s passing. At Forge Legal, we are experts in all aspects of estate law and we will sit down with you to discuss whether Probate is necessary or advisable in your circumstances, to determine how any joint assets are held and to determine what will be involved in the administration. From there, we can apply for a Grant of Probate or Letters of Administration on your behalf to make things simple and seamless in what is usually a difficult time. You will also have the opportunity to decide whether you wish for us to act on your behalf in the administration itself to save you the hassle, or whether the estate is simple enough that you feel confident to do it yourself. Just remember to contact us right away.

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There are a range of assets which do not automatically form part of a deceased estate.

It is important for prospective testators, executors and beneficiaries to be aware of these types of assets.

In this article we consider a range of these assets, including joint tenancy assets, superannuation death benefits and life insurance.

Joint tenancy assets

Joint tenancy is a form property interest in which each party to the joint tenancy owns the whole of the asset together.

Common examples of joint tenancy assets include real property and bank accounts.

The effect of joint tenancy ownership in assets is particularly important to understand in the context of estate planning in administration.

This is because, upon the death of a joint tenant, the remaining joint tenant/s will inherit the deceased party’s share of the relevant asset automatically.

Accordingly, joint tenancy assets do not form part of the asset pool constituting a deceased person’s estate.

Joint tenancy interests can be contrasted against circumstances whereby assets are held as a tenant in common. Tenancy in common assets prescribe a identifiable share of the asset to a relevant party/s, which does not automatically pass to the other tenant/s in common on death of the holder that interest.

Superannuation death benefits

Superannuation death benefits do not automatically form part of a deceased estate.

Superannuation death benefits will generally only form part of a deceased estate if:

1. the trustee of the relevant fund exercises their discretion to pay to the estate; or
2. the estate is the pre-determined recipient of such benefits (via binding nomination or trust deed operation).

In practical terms, it is often the case that superannuation death benefits will pass to a dependant spouse or children and accordingly not form part of the assets comprising the deceased’s estate.

Life Insurance

In determining who benefits from a life insurance policy regard must be had to the ownership of the policy and the named beneficiary/s under same.

Often life insurance policies are paid directly to beneficiaries such as a spouse or family member, and in such circumstances, these assets will not form part of a deceased estate.

In the event that a testator wishes for the proceeds of a life insurance policy to pass to their estate as beneficiary, their estate will need to appropriately nominated under the terms of the policy.

Points to take away

Not all categories of asset will automatically form part of a deceased person’s estate.

Having an understanding of the types of assets which are commonly excluded from consideration is important when preparing a will, conducting estate planning, and administering a deceased estate.

It will often be prudent, when engaging in these activities, to receive appropriate legal advice in order to ensure that a party’s intentions, interests and obligations are properly taken into consideration and met as applicable.

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Something that often surprises solicitors practicing in the area of succession law is the number of people who have been prudent enough to ensure their assets and loved ones are protected after their death by having a Will in place, only to completely leave to chance what might happen while they are still alive, but without the ability to make decisions.

We find that this omission, committed even by very prudent individuals who do not wish to leave anything to chance, is almost never intentional. Rather, it seems to stem from the fact that Powers of Attorney are misunderstood the majority of the population – and that only takes into account those who know of their existence!

In fact, many of our first-time clients mistakenly believe that their existing Will somehow incorporates a Power of Attorney or allows the Executor under their Will to make decisions on their behalf before they pass away. In actual fact, this is never the case.

What is a Power of Attorney and how does it differ from a Will?

Given this widespread confusion and the implications for those who consequently do not have a Power of Attorney in place, it is necessary to clearly and simply break down what a Will does, what a Power of Attorney does, and how they differ from each other.

A Will is a legal document which allows the Testator (the person making the Will) to set out the way in which their assets should be distributed upon their death. The person who is appointed under a Will to facilitate that distribution of assets is known as the Executor. The key point to remember is that a Will only comes into effect after the Testator has died. An Executor has no power to make decisions on a Testator’s behalf while the testator is still living. For more information on Wills, see the previous article in this series, The Essential Guide to Wills in Queensland

A Power of Attorney, on the other hand, is a legal document which allows the Principal (the person making the Power of Attorney) to appoint a person (or persons), known as the Attorney or Attorneys, to make decisions on their behalf while they are still alive.

There is no crossover between these two types of documents. A Will has no effect whatsoever before the Testator dies, and a Power of Attorney becomes immediately ineffective upon the death of the Principal. Often, the person appointed as Executor under a Will is even different from the person appointed as Attorney under a Power of Attorney. For this reason, it is always necessary to have both documents in place.

What are the different types of Powers of Attorney?

There are two main types of Powers of Attorney, General Powers of Attorney and Enduring Powers of Attorney. While everyone should ensure that they have valid Enduring Powers of Attorney in place at all times, General Powers of Attorney are nonetheless extremely useful documents in certain circumstances.

A General Power of Attorney is a document which allows the Principal to appoint an Attorney (or Attorneys) to make financial decisions on their behalf, with such powers coming to an immediate end once the Principal loses the capacity to make their own decisions. Usually, these documents are used for the purposes of allowing somebody to make decisions on the behalf of another for a limited period of time. A common example is a situation where the Principal is going overseas and wishes their Attorney to be able to sign a contract for the purchase of residential property and draw settlement cheques from their bank account on their behalf. Such documents are usually revoked once they are no longer needed. To continue with the above example, the document would be revoked upon the Principal’s return to Australia. Thus, General Powers of Attorney can be extremely useful tools in circumstances where distance or convenience require another person to be able to ‘step into one’s shoes’ financially.

Conversely, the decision-making powers granted to an Attorney (or Attorneys) under an Enduring Power of Attorney continue even after the Principal loses their own decision-making capacity. In fact, this is the only time most Enduring Powers of Attorney are utilised. In putting an Enduring Power of Attorney in place, Principals seek to ensure that once they lose their decision-making capacity (for instance, by way of dementia or vegetative state), their chosen person is able to make decisions on their behalf. Contrary to General Powers of Attorney, Enduring Powers of Attorney not only allow for Attorneys to make financial decisions, but also personal and health decisions. As such, these are the documents which every person should have in place, ready for ‘when the time comes’.

When do I need to put an Enduring Power of Attorney into place?

The short answer is now. Once you lose your decision-making capability, you will no longer be able to put a Power of Attorney in place. You can only put a Power of Attorney into place whilst you retain your full decision-making capacity. As a result, it is important to ensure you are protected early and not risking a situation whereby you lose your capacity to make decisions through accident or ill health, by which time it will be too late to put a document into place. If you fail to put an Enduring Power of Attorney in place and subsequently lose your decision-making capacity, your loved ones may have to go through the difficult process of obtaining an order appointing them to act on your behalf. This could make things exceptionally difficult in the interim as banks and other institutions will usually want to see documentary evidence (usually in the form of an Enduring Power of Attorney) of an individual’s ability to make decisions on the behalf of another.

What kinds of decisions can my Attorney make on my behalf?

Under a General Power of Attorney, Attorneys can only make financial decisions on your behalf. These include, for example, signing a contract for the purchase or sale of a house or car, withdrawing monies or closing a bank account, or purchasing investments.

Under an Enduring Power of Attorney, Attorneys can always make personal and health decisions on your behalf. These include decisions such as where you live or what kinds of healthcare you receive. Under an Enduring Power of Attorney, in addition to personal and health decisions, you can also specify whether you wish for your attorney to make financial decisions on your behalf.

When can the decision-making powers commence?

When making an Enduring Power of Attorney, the power to make personal and health decisions will always commence upon the Principal’s loss of decision-making capacity. Such a loss of capacity will usually be evidenced by a letter from the Principal’s doctor confirming same. For financial decisions under both General and Enduring Powers of Attorney, the Principal can choose when the power is to commence. With respect to Enduring Powers of Attorney, most Principals choose for the powers to commence upon a loss of capacity, however this is not a must. Also common for financial decisions (particularly where the Attorney is the Principal’s spouse) is for the Principal to choose for the powers to begin immediately. This way, the document can be used both as an Enduring Power of Attorney and in the way that a General Power of Attorney is usually used, for the facilitation of transactions in circumstances where it is inconvenient for the Principal to be present. It is also possible to choose a particular date for the power to commence. This is the usual course where General Powers of Attorney are concerned.

Who can I appoint as my Attorney, and how many Attorneys can I have?

You can appoint up to four Attorneys. When appointment more than one Attorney, you specify how you would like your Attorneys to come to their decisions (for example, you can specify that they must unanimously agree on a decision, that a majority must agree, or that any one of them may make a decision). While one or two Attorneys are usually sufficient, however in circumstances a Principal will wish to have input from a variety of people (for instance, a spouse and a child in a blended family situation).

You can also appoint attorneys successively, so that if your first choice has passed away or is not able to act, the power will pass to your second choice and so on.

You should appoint people you trust, such as close family of friends, as your Attorneys. You may not appoint a person under 18 years of age or a person who is your paid carer.

What obligations will my Attorney have while making decisions on my behalf?

Attorneys have an obligation to discharge their duties honestly and with reasonable care. Attorneys must comply with a number of duties. Some of the more important duties include the duty to keep records, the duty to keep the Principal’s property separate from their own, the duty to avoid transactions which constitute a conflict of interest, the duty to not waste of give away the Principal’s property and the duty to promote the Principal’s health.

In the event that an Attorney fails to comply with these duties, they may be investigated by the Public Guardian or removed by the Queensland Administrative and Appeals Tribunal.

How can I revoke a Power of Attorney?

Revoking a Power of Attorney is a very simple matter. In some circumstances, a Power of Attorney becomes void by default. General Powers of Attorney will automatically become ineffective upon the Principal’s loss of capacity, while both General and Enduring Powers of Attorney will automatically become ineffective upon the Principal’s death.

Where a Principal wishes to revoke a Power of Attorney before its automatic lapsing, they may do so (so long as they still retain their decision-making capacity) by executing a new Power of Attorney of the same type which supersedes the old, or by simply signing a revocation form which immediately causes the power to cease.

Are you considering doing your own automated Will online, or completing a Will Kit yourself, as a less expensive ‘do-it-yourself’ solution?  Be very careful as preparing your own Will using an online template, or using a ‘DIY’ Will Kit, can potentially create more problems for you and your family, rather than a solution.

An experienced lawyer should provide you with advice to ensure you are aware of the potential risks that may arise including contesting a Will and a claim being made against your estate.  An experienced lawyer will review your financial circumstances and family dynamics and discuss your intentions regarding the distribution of your estate to ensure your Will is prepared correctly and accords with your wishes.

Our friendly and understanding team of lawyers are here to help you put your estate planning in order and provide you with expert advice.  We keep the process simple, quick and cost effective for you, so you don’t need to put off doing your Will any longer!

Here’s 10 reasons why you should engage one of our experienced lawyers to prepare your Will and advise you on your estate planning, to avoid the pitfalls that arise from using an automated Will service available online or a ‘DIY’ Will Kit:

1. An automated Will generated online uses a template where you are asked a series of questions. You cannot know the quality of your online Will, what is missing, what did you forget, or leave out?  The same applies if you complete a Will Kit yourself.  If you do not answer the questions correctly, the Will automatically generated, or Will Kit completed by you may not be prepared correctly.  There is the potential for you to misunderstand the questions used in the template or kit, or not have the capability to make your wishes known.  Your intended wishes may be quite different from the legal effect of the terms of the Will that has been automated online or the Will Kit you have completed.  This may mean that some gifts fail, or the Will may not be upheld as a valid Will and your wishes may not be carried out.  If your Will is invalid, your estate will be distributed in accordance with the rules on intestacy as set out in the Succession Act 1981 (Qld);
2. There is an increased likelihood with automated Wills or Will Kits that the formalities associated with the execution and witnessing of a Will (including alteration of a Will, or revocation of a Will (either partially or in full), number of witnesses, interested parties serving as a witness and other formal requirements may not be complied with. Unless the Court is satisfied to dispense with the execution requirements for a Will the document may not be a valid Will, or alterations or revocation of a Will may not be deemed valid.  This may lead to the executor being faced with problems that are not able to be rectified and not being able to administer your estate the way you intended;
3. Most online Will templates, or Will Kits do not consider your individual and unique needs. Accordingly, not all relevant questions may be asked.  For example, if you own any joint real property i.e. real estate owned jointly with any other person, do you know if such property is held as ‘joint tenants’ or ‘tenants in common’?  ‘Joint tenancy’ means that the property will automatically pass to the surviving registered owner upon your death.  This is regardless of any bequests made in your Will.  Thus, you cannot gift your interest in the property to another person named in your Will, unless the property has already passed to you by survivorship upon the death of the other registered owner.  Conversely, ‘tenants in common’ allows you to gift your percentage share to another person in your Will.  However, there are various factors that may need to be considered in doing so, for example, if your share of the property is gifted to another person how will the property be cohabitated if both parties intend to live in the property?  What if one party wishes to sell the property and the other does not?  What if one party is living in the property and failing to maintain the property, or both parties are unable to agree as the necessary maintenance and repairs required to be carried out on the property?  These are only some examples of matters that need to be given serious consideration and require expert advice to ensure the bequests you make in your Will do not lead to disputes with your estate;
4. Due enquiry may not be made as to a person’s testamentary capacity with an automated Will or Will Kit. You must have testamentary capacity at the time of executing your Will, otherwise the Will is not valid.  The executor of a deceased estate has an obligation to make due enquiry as to whether the deceased had testamentary capacity at the time of making their Will if there is any evidence to suggest a lack of testament capacity.  You cannot be expected to understand the scope of testamentary capacity, without the aid and advice of a lawyer;
5. An online automated Will or a Will Kit is often completed behind closed doors where there can be pressure, duress or undue influence within a family group, particularly with the elderly who may require some assistance in completing the forms and templates online. After the death of the Will maker, any person who was present when the online template or Will Kit was completed is potentially at risk of accusations of pressure, duress or undue influence.  If any person has exerted such behaviour, they may be the only witness likely to be able to give evidence as to the deceased’s intentions as set out in their Will.  The evidence of such persons who have acted inappropriately is likely to be self-serving and may not attest to the true intentions of the deceased.  We can arrange one of our experienced lawyers to review your estate planning needs and prepare your Will.  Our usual practice is not to permit any person to be present other than the Will maker.  This assists to prevent a Will maker feeling frightened, isolated, pressured or lacking the capacity to clearly state and give effect to their true intentions as to the distribution of their estate;
6. An automated Will prepared online or Will Kit does not necessarily detect, or alert you to potential claims being made against your estate. Claims made against an estate are often referred to as ‘family provision claims’.  Despite any wishes made under your Will, you cannot prevent a family provision claim being made against your estate. That is, where a person dies and in the terms of their Will adequate provision is not made from the estate for the proper maintenance and support of a deceased person’s spouse, child or dependant, the Court may use its discretion, on application made by a party, to make an order for such provision as the Court thinks is reasonable to be paid out of the estate to the applicant.  Usually, due to competing interests of parties, each party is separately represented and the costs are ordered to be paid by the estate prior to any distributions being made.  This ultimately serves to reduce the amount of the beneficiary entitlements.  The costs for these types of claims can be substantial and at times, outweigh the amount of the estate available for distribution.  We provide experienced lawyers who are well educated as to the types of family provision claims that may arise.  Our expert lawyers can provide you with advice regarding potential claims against your estate and offer possible solutions and alternative suggestions, or options you may wish to consider to avoid a claim being made against your estate;
7. An automated Will or Will Kit does not assist in providing any records or evidence from an independent expert lawyer. When preparing your Will, our estate lawyers take detailed notes and keep a record of any meetings and discussions including advising as to any relevant supporting documents that should be kept with your Will.  This means you are likely to have documentary evidence that can be produced, as well as evidence that may be given, in person from one of our lawyers, who are independent of interested parties named in your Will.  Our lawyers can offer their view, based on your instructions, as to your intentions regarding the distribution of your estate including any explanation or reasons as to your wishes you have discussed with us.  This if often of great assistance to the Court in determining the validity of your Will and/or determining any provision that should be ordered with respect to any family provision claims made against your estate.
8. The services offered through online automated Wills, or through the use of Will Kits do not give you any financial and/or taxation advice. It is unlikely that you will be abreast of taxation law changes which may adversely affect your estate planning.  Depending upon your financial circumstances and the terms of your Will that has been generated online or the Will Kit you have completed, your estate (and in some cases your beneficiaries) and may end up having a substantial taxation liability, which could have otherwise been avoided if the necessary financial and taxation advice had been sought;
9. Any information supplied through services offered online for automated Wills is no substitute for legal advice. They do not provide personalised advice, particularly for matters such as where you need help choosing executors, providing appropriately for minor children or dependents with special needs, you are separated from your partner, you intend to marry, you own assets overseas, you have re-partnered and are in a ‘blended family’ with biological children, step-children and/or adopted children.  Our team of lawyers undertake professional education and development each year to ensure the services and advice we provide is based upon the most up to date legislation and cases that have been determined by a Court.  Our expert lawyers can provide you with guidance and advice to try to avoid potential claims being made against your estate;
10. When a Will is prepared by a lawyer, there are consequences if the lawyer has not prepared your Will correctly. Lawyers are insured in the event they make a mistake.  With an automated Will generated online or a Will Kit you have completed yourself, you are likely to be the one who is responsible and liable if you get it wrong.

‘Do-it-yourself’ online automated Wills and/or Will Kits are no substitute for Wills prepared by lawyers.  You may think you have provided for and protected your family, however if there are errors or mistakes, or other relevant factors you have not considered or addressed, you may have created only problems for your family instead of a solution and your family members may then find themselves in a costly dispute over your estate that could have been avoided had you engaged the team at Forge Legal.

Read this article The Essential Guide to Wills in Queensland for more.

There are many areas of law which most of us will only need to engage with very rare and in very specific sets of circumstances – for instance, where the negligence of another person causes an injury or where a marriage breaks down. Some of us are lucky enough to pass through life without ever having to engage with these areas of our legal system.

One area of law that each and every one of us must consider and engage with, however, is that of Wills and Estates – in fact, to do so is to ensure that our hard-earned assets, built up over the course of a lifetime are protected, and our loved ones are provided for.

No matter who you are, at what stage of life you find yourself, or how wealthy or otherwise you may be, if you live in Queensland, the following will apply:

1. You need a Will;
2. You need an Enduring Power of AttorneyEnduring Power of Attorney; and
3. At some stage, it is likely that you will act as executor for a deceased estate.

For this reason, we have prepared this five-part series on Wills and Estates, which encompasses this first article on Wills, and will be followed by articles on Enduring Powers of Attorney, Estate Administration, Probate and Family Provision Claims.

What is a Will?

In very basic terms, a Will is a legal document which allows the ‘Testator’ (you, the person making the Will) to set out how you wish your assets to be distributed upon your death. It is important to distinguish a Will from an Enduring Power of Attorney, which allows you to appoint somebody to make decisions on your behalf while you are still alive. The key point to remember is that a Will only comes into effect once you have passed away.

Do I need a Will?

In brief: yes. There is nothing as simple and effective as a Will when it comes to protecting your assets and your loved ones. As estate lawyers, we frequently come across situations where the absence of a Will results in the assets of a deceased being distributed in a radically different way than the deceased and their family would have contemplated. This can mean either loved ones going without and having to radically re-evaluate their lifestyles or the stress of a costly, bitter and lengthy family provision claim.

What happens to my assets if I die without a Will?

If you die in Queensland without having a valid Will in place, the way in which your assets will be distributed is determined by the Provisions of Intestacy. This refers to a ‘one-size-fits-all’ set of rules determined by the state government as to how the assets of a person who dies without a Will are to be divided up. As everyone’s personal and family circumstances are unique, by definition the way in which this ‘one-size-fits-all’ set of rules operates can often be very surprising to people who are unaware of it, and more sadly still, to their loved ones after they pass on.

For instance, most people instinctively believe that their surviving spouse would receive the entirety of their estate. Surprisingly, this is not the case. In fact, a surviving spouse may receive as little as $150,000 plus one-third of the remainder of the estate. In some circumstances, the intestacy provisions can see a deceased estate distributed to aunts and uncles (which, with respect to the many excellent aunts and uncles of Australia, is not where most people expect their estates to end up going). Worse still, there are situations where the entirety of a deceased estate may go to the state government, in precedence to, for instance, a dear friend or carer. We think it’s fair to say that this idea would be horrifying to a good proportion of Queenslanders! Add to this the fact that the state government could amend the existing intestacy provisions at any time by passage of legislation.

What is an executor and who should I appoint?

The first thing that most Wills specify is who is to act as executor (or executors) of the estate. An executor is the person who will apply for a grant of probate [hyperlink], ‘collect in’ the assets of the estate, pay out the estate’s liabilities and distribute the remainder to the beneficiaries in accordance with the Will. The executor may also need to maintain and invest estate assets so as to preserve their value, particularly in circumstances where the entitlement of a beneficiary does not vest until a certain age is attained. Given the nature of these responsibilities, it is imperative that only people who you trust implicitly are appointed as executors. These are usually close family members, but can also be professionals such as solicitors or accountants, who may charge a fee to be paid out of the estate.

You can appoint multiple persons to act jointly as executors (although we suggest no more than two). Importantly, we always suggest that an alternate executor is appointed for circumstances where your first choice predeceases you.

How can I divide my estate?

The first thing to consider when making your Will is whether you wish to give any specific items or sums or money to any specific people – for instance, an engagement ring to a granddaughter or $10,000 to a close friend. Not everyone chooses to make specific gifts under their Will, but they can be particularly relevant in circumstances where an item may have special sentimental value to a certain beneficiary.

The most important clause in any Will is the residuary clause. This is the clause which specifies how the residuary of estate (that is, everything that remains after the liabilities have been paid and any specific gifts have been made) is to be divided. This can incorporate a number of ‘tiers’, whereby the residuary can go to a certain person (for instance, a spouse) if that person survives, or otherwise to another person or class or persons (for instance, children).

At Forge Legal, we can draft residuary clauses such that the ongoing evolution of ‘classes’ of persons such as children or grandchildren is taken into account. That way, if a member of the class dies or a new member is born, there is no need to make a new Will.

We can also incorporate trust provisions into a Will, such that estate assets or funds can be controlled by a trustee and gradually distributed for the benefit of a beneficiary, or invested by a trustee until a beneficiary reaches a certain age.

What else can I specify in my Will?

Aside from their principal function of specifying how assets are to be distributed, Wills often contain statements as to the Testator’s intentions in relation to a number of other issues.

Often, parents will specify a person who they wish to act as guardian of their minor children upon the passing of themselves and the other parent.

Another common addition are statements of wishes as to funeral, burial or cremation arrangements. These could be as simple as a statement that such matters should be determined by the executor or go into detail about the conduct of the ceremony or the location of a memorial.

Whilst such statements are non-binding, they are a powerful expression of the Testator’s wishes and are often given serious weight and consideration.

How can I put a valid Will in place?

It is never too soon to make your Will. At Forge Legal, we make the process streamlined and simple, and we draft Wills in such a way that unnecessary amendments, later on, may be avoided.

The laws relating to the validity of Wills in Queensland are stringent and complex. There are countless issues which could render a Will invalid or a contest of a Will successful. The following are a non-exhaustive selection of examples:

1. Taking apart, hand-amending, marking, re-stapling or improperly binding the document;
2. Not complying properly with the requirements for the witnessing of the Will’s execution or using a beneficiary as a witness; and
3. Not having sufficient notes or documentation relating to the mental capacity of the Testator at the time the Will was made.

It is imperative that you have an experienced solicitor assist in making your Will. There are simply too many formal requirements (and too much at stake for your family) to risk doing it yourself.

At Forge Legal, when we draft a Will, our first priority is to ensure that you have a valid Will which will mitigate against any challenge on the grounds of mental incapacity, formal requirements not being met, or allegations of insufficient provision being made to certain relatives or dependants. Wills are a big part of what we do, so we can immediately identify any risks which might apply, and make sure those risks are mitigated against.

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