Frequently Asked Questions
If you do not have a will, then the intestacy rules set out in legislation will determine how your estate is to be distributed irrespective of your wishes. For example, many people assume everything will go to their spouse, but this is not the case if you have children.
Not having a will not only means your wishes will not be carried out, but it may also increase the cost of your estate administration. Without a Will, many organisations will refuse to release assets to the next of kin without a Grant of Letters of Administration (Intestacy). This can cause significant delays, and in some instances, the Application for a Grant of Letters of Administration (Intestacy) may cost more than the value of the estate.
If you are over the age of 18 years, we recommend you make a will.
In certain circumstances, a person under the age of 18 years, or a person who lacks testamentary capacity, can also make a will with the approval of the Supreme Court of Queensland.
Wills are not just for the rich or elderly. Anyone with a car, savings or sentimental items should have a will. More importantly, if you do not have a spouse or children, your superannuation (and any life insurance you have inside your superannuation) may be paid to your estate. Without a will, this benefit will pass according to the intestacy rules. This may include, for example, payment to a parent whom you are estranged from.
In Queensland, a married spouse, de facto spouse, children (including stepchildren and adopted children) and a financial dependant can make a claim against a will if they believe the will does not provide for their adequate maintenance or support. This includes children whom you may have been estranged from for decades. It can also include a former spouse if you have not obtained a Decree Absolute from the family court.
Any direction contained in your will that it must not be challenged, or that a bequest is to be omitted if your will is challenged, is invalid. There are, however, steps which can be taken to minimise the potential impact of a claim upon your estate and legal advice should be sought in this regard.
Assets you hold in a trust will remain in that trust. As part of your estate planning, you should provide for who will take control of the trust when you die.
Life insurance policies will be paid to the nominated beneficiary.
Superannuation will be paid to the nominated beneficiary if you have made a valid binding death benefit nomination. If a non-binding nomination has been made, or your nomination is invalid, the trustee of the superannuation fund will determine the beneficiary of the benefit. In certain circumstances, this may include the legal personal representative of your estate, particularly if the member had no spouse or children.
You can take steps, as part of your estate planning, to ensure that your superannuation and life insurance is paid in accordance with your wishes.
If both parents of a child under the age of 18 years dies, then guardians for that child can be appointed by the will of the last parent to die. Appointing a guardian for your children in your will is the simplest way to ensure that the people you want to look after your children, are the people who do care for them.
There is no limit on the number of executors you can nominate. However, the number of executors should be limited to four as that is the maximum number of people who can take out a grant of representation (ie a Grant of Probate). The number should also be limited to no more than four to avoid any delay with execution of documents and to avoid disagreements or conflict.
It is also recommended that the nominated executor be an Australian resident to avoid any taxation issues.
We recommend that people read over their will and enduring power of attorney at least once a year to check that the documents still reflect their wishes.
Circumstances that may require a new will include:
- marriage – revokes a will
- divorce or separation in a de facto relationship – a gift to a former spouse is treated as if it is deleted from the will
- when children are born
- if your financial situation changes
- if you receive an inheritance
- if you sell assets mentioned in your will
- if people mentioned in your will die
The will maker must be at least 18 years of age.
The will must be in writing and signed by the will maker, in the presence of two witnesses who are present at the same time. The two witnesses must also sign the will.
If the witnesses are beneficiaries of the will (or spouses of beneficiaries), then any gift to them in the will is void. They should not be a witness to your will.
Once signed, the will should be stored safely and securely. Any damage to the will, such as a tear or rust/water marks, may raise a presumption of tampering.
A will can be made in several ways: a will kit, via the Public Trustee, via a private trustee company, over the internet or with your solicitor.
To ensure your will is made properly and all the formal requirements have been met, we recommend that you have your will prepared by a solicitor with experience in making wills.
Things to think about before you make your will include:
- who to appoint as executor of your will. Executors control your assets after your death, attend to all of the paperwork, make decisions and then distribute the gifts outlined in your will;
- if you have children under the age of 18 years, who you would like to appoint as their guardian;
- who you wish to give your assets to after death. Also, consider who you would wish to benefit from your will if your immediate family does not survive you;
- you will need to provide your solicitor with full names (including middle names) and street addresses of people mentioned in your will; and
- you will also need to provide your solicitor with a list of assets including superannuation, life insurance, trusts and businesses.
Enduring Powers of Attorney are important estate planning documents as they enable you to choose the person who can make decisions upon your behalf in the event of a loss of capacity. Such decisions can range from personal/health decisions to financial decisions. Without an Enduring Power of Attorney, in the event of loss of capacity, a relative would need to apply to the Queensland Civil & Administrative Tribunal to be appointed as a guardian. This can be an expensive and stressful process.
Any person over the age of 18 years can be nominated as your Attorney. It does not need to be a lawyer or a professional. You can nominate a relative, friend or any other person you trust to look after your affairs and make decisions in your best interests.
Once activated, any decision made by the attorney on your behalf will be legally binding. It is therefore important to choose someone you trust.
Yes. The Enduring Power of Attorney enables you to:
- include wishes and guidance for your Attorney which are not binding; and
- include binding directions upon your Attorney.
When it comes to your health/personal decisions, you will always be able to make your own decisions until you lose capacity. Loss of capacity is determined by a qualified medical practitioner.
When it comes to financial matters, you can choose for your Enduring Power of Attorney to commence immediately (whilst you still have capacity), at a specific time or upon loss of capacity as determined by a medical practitioner.
If you have the capacity, you can choose to end your Enduring Power of Attorney at any time by signing a Revocation of Enduring Power of Attorney and providing a copy to your Attorneys.
Other ways in which your Enduring Power of Attorney can end include:
- marriage or divorce; or
- the Queensland Civil and Administrative Tribunal or the Supreme Court orders that your enduring power of attorney is revoked.
Yes. There is no limit on the number of attorneys you nominate.
If you nominate more than one attorney, you must indicate how they are to make decisions (ie jointly, severally or by majority). Note that you can only appoint a maximum of four attorneys to act jointly.
You can also appoint different attorneys for your personal/health matters and financial matters. You cannot, however, appoint an attorney who is also your paid carer. A paid carer does not include a person who is receiving a carer’s pension from Centrelink.
From experience, we recommend:
- nominating an attorney you have complete trust in. Someone who will have the capacity to look after you and your affairs for long periods of time;
- nominating an attorney who can easily attend upon you should capacity become lost (ie travel to your location to meet with doctors and choose appropriate respite or nursing homes); and
- nominating a limited number of attorneys to reduce the possibility of conflict.
If a loved one has passed away and you have been appointed the executor of their estate, your obligations include:
- organising and paying for the funeral;
- organising and paying for the cremation or burial;
- identifying the assets and liabilities of the estate;
- ensuring estate assets are insured until transferred or sold (eg. house and car insurance);
- identifying beneficiaries;
- attending to payment of estate debts including tax;
- distributing the estate.
When it comes to the funeral and cremation/burial, the tax invoice from the funeral home can be taken to a branch of the bank where the deceased has an account. Upon production of the invoice, the bank will issue a bank cheque from the deceased’s bank account for payment to the funeral home (providing the account has a sufficient balance to pay the invoice).
Yes. Any reasonable expenses incurred by an executor can be reimbursed by the estate.
Yes. An executor can claim what is known as executor’s commission. Executor’s commission is a payment for the pains and trouble incurred by an executor when administering an estate. There is no fixed fee or sliding scale for the amount of commission which can be paid. The amount paid is generally determined by the size of the estate and the amount of work involved. Any inappropriate action by the executor, such as intentional delay or fraud, can result in a reduction or loss of entitlement to commission.
Any payment of executor’s commission must be agreed upon by the residuary beneficiaries. If an agreement cannot be reached, an application must be filed in the Supreme Court of Queensland.
If notification of an intention to pursue a family provision claim against the estate has not been received within six months from date of death in Queensland, the executor may distribute the estate without exposing themselves to any personal liability.
If notification has been received, and distribution has occurred in any event, the executor may be held responsible for returning the funds to the estate.
An executor has the power to appropriate assets if requested by a beneficiary. Appropriation enables a beneficiary to utilise their share of the proceeds of an estate to own an asset outright. Stamp duty consequences may arise because of appropriation and legal advice should be sought before any agreement is reached.
Pursuant to section 33Z of the Succession Act 1981 (Qld), persons who are entitled to inspect a will or obtain a copy of a will include:
- a person mentioned in the will, whether as beneficiary or not and whether named or not;
- a person mentioned in any earlier will of the testator as a beneficiary and whether named or not;
- a spouse, parent or child of the testator;
- a person who would be entitled to a share of the estate of the testator if they had died intestate;
- a parent or guardian of a minor mentioned in the will or who would be entitled to a share of the estate if the testator had died intestate;
- a creditor or other person who has a claim at law or in equity against the estate; or
- a person who is eligible to pursue a family provision claim against the estate.
A certified copy of a document is a photocopy of the original document which has been certified as a true copy by a solicitor, Justice of the Peace or Commissioner for Declarations. To have a document certified, you must provide the certifier with the original document and a photocopy of the original. Once certified, the original document can be retained whilst the certified copy can be sent to the person or institution who requested it.
There is no limit to the number of times an original document can be certified.
A Grant of Probate or Grant of Letters of Administration is a document validated by the Supreme Court of Queensland that a person is authorised to administer an estate and, in the case of a will, that the will is the last will of the deceased.
A Grant of Probate or Grant of Letters of Administration requires an application to be submitted to the Supreme Court of Queensland. It is recommended that legal advice is sought before an application is filed.
No. As soon as the principal passes away the Enduring Power of Attorney comes to an end. Only the person nominated as executor under a will can administer an estate. If there is no will, only the person with the highest priority (as determined by legislation) can administer an estate.