Wills & Estates

Estate planning forms an integral part of a person’s legal affairs. Although most of us would prefer to delay making a Will and estate plan, such matters must be dealt with if you want to provide clarity for your family and make the process of finalising your affairs a little less daunting for those you leave behind.

In addition to preparing a valid Will, estate planning also involves taking steps to ensure your affairs can be managed by somebody you trust as you age or if you become incapacitated and can no longer make decisions for yourself. You can do this by making a power of attorney or enduring power of attorney.

We can help with all your estate planning and will take time to understand your family and financial circumstances, so your plan is catered to your individual needs. If you have lost a loved one, we can help with the administration of their estate to ensure it can be finalised with as little expense and complexity as possible.

Legislation

In Queensland, the Succession Act 1981 sets out the legal requirements for making a valid Will, and the rules that apply for an individual’s estate if they die without a Will (referred to as dying intestate). In such cases, the deceased person’s estate is dealt with in accordance with the rules of intestacy, which distributes the estate to their next of kin, in a specific order of priority. This can often result in a distribution of assets that does not align with the wishes of the deceased person.

The Succession Act also sets out the legal process for administering an estate, including the appointment of an executor or administrator.

Wills

A Will is a legal document that outlines the distribution of a person’s assets and property upon their death. A Will also nominates one or more executors who will be responsible for administering the estate when the testator (person making the Will) dies.

To be valid, a Will must be in writing, signed by testator, and witnessed by two witnesses who are present at the same time. The testator must also have the mental capacity to make the Will and must not have been unduly influenced or coerced into making it.

As lawyers are trained to write Wills, we can ensure that the legal formalities are met so there are no issues regarding the authenticity of your Will after you die. We will also consider your individual circumstances to ensure wherever possible that your assets and beneficiaries are protected from third party claims and the potential for disputes is minimised.

Estate Administration

The executor or administrator of an estate is responsible for managing the assets and property of the deceased person, paying any debts and taxes owed by the estate, and distributing the remaining assets to the beneficiaries named in the Will.

The role of the executor or administrator is an important one and requires a good understanding of the legal requirements and procedures involved in administering an estate. They may also need to apply for a grant of probate or letters of administration from the Supreme Court before the estate can be administered. Executors and administrators may be held personally liable for any mistakes or errors made in the administration of the estate, which can result in significant financial consequences. For this reason, most executors or administrators will retain the services of a lawyer to help with the court documents and processes (as relevant) and the distribution and finalisation of the estate.

Estate Disputes

Estate disputes can arise between family members or other parties who believe that they have not been adequately provided for in a Will, or who dispute the validity of the Will itself. This can be an emotional and confronting time for all involved.

In Queensland, disputes relating to wills and estates can be resolved through the Queensland Supreme Court. The Court has the power to interpret the provisions of a Will, and to make orders for the distribution of an estate if a Will is found to be invalid or if there are disputes between beneficiaries. Many estate disputes can be resolved without recourse to the Court, through negotiation and mediation. We can help if you are involved in an estate dispute or wish to make a family provision claim. Strict time limits apply, and we recommend contacting us as soon as possible.

If you need assistance, contact [email protected] or call 0403 017 636 for expert legal advice.