Wills and Estate Law

A Will is an important legal document that sets out your final wishes. It includes how you would like your estate to be distributed in the event of your death.

If you die without a Will, someone will need to act as your personal representative. To do this, they’ll obtain a grant from the Court to be the executor of your estate.

If no one is willing or able to act as your executor, the Public Trustee will do so.

In either case, there are rules in place to determine how your estate will be distributed. These are known as the ‘Rules of Intestacy’.

For example in Queensland:

• If you have a surviving spouse but no children, the entire estate will go to your spouse.
• If you do not have a spouse, but are survived by children, the estate will be divided equally between your children.
• If you are survived by a spouse and children, your spouse receives $150,000, the household chattels, and a share of the remaining estate. Your children then receive equal shares of the remaining estate, after the spouse deductions.
• If you do not have a surviving spouse or children, rules apply to distribute the estate to other family members, like your parents or siblings.

If you’d like your estate to be distributed differently, you’ll need to have a legally binding Will. Generally, creating a Will may lessen the chance of future complications.

Preparing a Will can be complex, but we’ll help you cover all bases and guide you through every step of the process.

Before we meet, it’s important to think about a few critical things.

These include:

• Who you wish to appoint as your executor
• Who you wish to appoint as the guardian or guardians of your minor children
• What assets and liabilities you have
• How you wish to distribute your assets in the event of your death

It’s common for circumstances to change over time, so it’s wise to review your Will regularly.

Situations that may prompt a change to your Will include:

• Marriage or divorce
• The birth of children or grandchildren
• The death of a beneficiary or executor
• A significant change to your financial situation or assets held by you

Queensland:

In Queensland there are time limits in place within which a person can contest a Will. If you wish to contest a Will you have six (6) months from the date of death to provide your notice to the executors of the estate that you intend to bring a family provision application. Once the notice has been provided you then have a period of nine (9) months from the date of death to file your family provision application with the court.

Whilst there are some instances where you might get an extension, you will need the Court’s approval and it can be difficult to obtain. If you are thinking of contesting a Will it is best that you seek advice as soon as possible to avoid missing the time limits.

New South Wales:

In New South Wales there are time limits in place within which a person can contest a Will. If you wish to contest a Will you have twelve (12) months from the date of death to file your family provision application with the court.

Whilst there are some instances where you might get an extension, you will need the Court’s approval and it can be difficult to obtain. If you are thinking of contesting a Will it is best that you seek advice as soon as possible to avoid missing the time limits.

Estate Administration is usually undertaken by an executor. Generally, this person is appointed in the deceased’s Will.

If the executor is unable or unwilling to act, or if there is no Will, another person may administer the estate. Where no one is able or willing to act, the Public Trustee will step in.

In some circumstances, an executor may act informally. In most cases though, they will need to obtain a Grant from the Court that authorises them to act and provides legal protection.

Generally, an executor’s duties are to gather the assets of the deceased’s estate, and to pay any debts of the deceased.The executor then distributes the remaining assets to the beneficiaries of the Will.

Depending on the nature of the estate, some of the things an executor may be responsible for include:

• Organising a funeral
• Applying to the Court for a Grant of Probate (see below)
• Identifying the deceased’s assets and liabilities
• Organising proper insurance cover for the deceased’s property
• Closing bank accounts
• Selling or transferring the deceased’s house and other property
• Paying any creditors
• Liaising with beneficiaries
• Distributing money and items to beneficiaries
• Taking care of any taxation issues
• Looking after assets or investments that have been left to anyone under 18 or with a legal disability
• Representing the estate in any litigation (e.g. a family provision claim)

If you’re named as the executor of a Will, you may need to apply for a Grant of Probate. This is the court’s official recognition that the Will is legally valid, and you’re authorised to deal with the estate. It will also provide you with protection from liability.If there is no executor appointed, or the executor is not able or willing to act, another willing person may apply to the Court for a Grant of Letters of Administration. This person could be, for example, a spouse, de facto spouse, child or next-of-kin.

A Grant of Letters of Administration is essentially the same as a Grant of Probate.

An Application to the Court for Probate involves advertising the intent to apply in the QLD Law Reporter.

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