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There is no one answer to how to make your Will. It all depends on your assets, your circumstances and who your beneficiaries will be.
You need to make a will that makes your wishes clear, that avoids confusion and conflict amongst your loved ones, and that is legally valid and binding. Doing this will protect your family and friends from costly and stressful legal disputes.
Things you need to consider
Who will be your Executors?
Your Executors have the legal and administrative task of sorting out your assets and debts after you die and making sure that your wishes, as outlined in the Will, are upheld.
Who will be your beneficiaries and what effect will their inheritance have on their circumstances?
You can designate anyone as a beneficiary and distribute your assets in any way you like, however, if you don’t provide for your family and dependants, your will could be contested and your hard won assets used on litigation fees.
You also should consider the effects that an inheritance may have on your beneficiaries. In some cases, a testamentary discretionary trust can sidestep potential taxation and asset protection problems, so it’s important that you get specific advice about your situation.
How do you know a Will is valid?
To be valid, the person making the Will must be mentally competent, the Will must be correctly signed and witnessed, and show no evidence of tampering. The witnesses to the Will cannot be beneficiaries, or related to beneficiaries and must be over 18.
If there is any doubt or potential for dispute as to your mental competence, you should get a doctor’s confirmation of your capacity to make the will and include it with your Will.
How often should I review my Will?
You should certainly review your Will after any major events, such as marriage, divorce, property purchase or sale, the death of a beneficiary or if your assets change significantly. We also recommend that you take a look at your Will every couple of years just to make sure that it is still the best instrument for you and for your family.
We can help
We know the potential pitfalls, and will ask you all the right questions to make sure that you have considered every possibility. We can advise you as to whether you would be best with a standard Will or one that includes a Testamentary Trust. We can design your Will in such a way to help protect your family from expensive estate litigation after your death and we can safely store your Will in our secure vault.
Contact us to discuss your particular situation and your family’s needs.
If you’ve been left out of a Will, or have been unfairly treated in terms of the amount of your inheritance, you may be able to make a claim against the estate.
Who can dispute a Will?
It varies from State to State, but some of the people who may be entitled to claim in Queensland include those related to the deceased as follows:
- wife or husband
- defacto or same-sex partner
- former spouse or defacto partner
- child or stepchild
- parent of a child of the deceased
This is a very general guide only, so please contact us to discuss your particular circumstances.
Is there a time limit?
Yes, there is. In Queensland, you have only six months from the date of death to give notice of your claim and nine months to file your claim. In certain circumstances, we might be able to obtain an extension of these time limits, so please contact us to discuss your situation.
What if I don’t believe the Will is valid?
You can challenge a Will if you believe that the will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe that undue influence was brought to bear upon the deceased or if there was fraud involved.
But I was promised!
In some circumstances, if the deceased has promised to make a gift to you on their death, you may be able to enforce that promise.
How do I make a claim?
First, contact a lawyer, who can assess your claim and discuss the particular circumstances of your claim. If it’s worth continuing we will contact the executors and notify them of your claim. We will then gather evidence, prepare documents and, subject to the circumstances and your instructions, possibly make an offer to the executors. Many claims are settled through negotiation at this stage.
If the matter isn’t resolved then we can lodge documents with the court to initiate proceedings. The usual course is for the parties to engage in mediation to encourage settlement prior to the parties incurring the cost of a trial or hearing.
Failing all else, we will proceed to a Court where the evidence will be presented and the judge will make a decision.
We can help
At every stage of contesting or challenging a Will, it’s important to have sound, experienced legal advice. We have the skills to negotiate on your behalf to avoid costly court fees, but if it comes down to proceeding to court, we also have the skills to fight on your behalf.
Contact us to find out more or to arrange a consultation.
Are you an Executor?
Have you been chosen by a family member or friend to be the Executor of their Will? This means that you have been given responsibility to manage their estate according to the terms they’ve outlined in their Will and to protect their assets under the various laws and rules that govern estate administration in Australia.
An executor’s responsibilities may include:
- Organising the funeral, notices for the paper, flowers
- Locating the Will
- Obtaining a copy of the Death Certificate
- Making sure any property and assets are safe and secure
- Determining the value of assets
- Applying for Probate or a Grant of Administration
- Paying insurance policies, debts and taxes
- Collecting monies belonging to the deceased from financial institutions and insurance companies
- Collecting debts owed to the deceased
- Lodging tax returns for the deceased and for the estate
- Selling properties and assets
- Reporting to beneficiaries
- Distributing the proceeds of the estate to beneficiaries
- Setting up trusts
Being an Executor can be overwhelming, particularly when you are grieving, but rest assured we can guide you through the process.
Do Executors get paid?
It depends. If you are a beneficiary of the will, sometimes it is presumed that your benefit will cover your costs. If you’re not a beneficiary then you can apply to the Supreme Court for commission.
Do I need a Lawyer?
Estates vary in complexity and Executor’s duties can be complicated, so it may be a good idea to get advice from a lawyer. The cost of legal advice is usually covered by the estate, not the Executors personally.
What is Probate?
Probate is recognition that the Will is valid and permission from the Supreme Court for the Executors named in the Will of the deceased, to carry out their duties in relation to the Estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling property and obtaining bank funds.
What if there is no Will?
This situation is referred to as intestacy and the law determines how assets will be shared out after debts have been paid. The law is different in each State and Territory of Australia. Sometimes the law in multiple jurisdictions can apply! It is best to seek legal advice about who has priority to apply for a grant of letters of administration and who is entitled to benefit from the estate.
Contact us to find out more or to arrange an appointment with an experienced Probate lawyer.
There are three types of documents commonly used in Queensland to appoint others to make certain decisions on your behalf:
- General Power of Attorney
- Enduring Power of Attorney
- Advance Health Directive
A general power of attorney is a legal document that gives one or more people, nominated by you, specific authority to make financial decisions on your behalf. This power stops if you lose the capacity to manage your own affairs. This kind of power of attorney is most often used for commercial transactions.
An enduring power of attorney continues in the event that you lose capacity to manage your affairs and covers both financial and personal or health decisions. If you have an accident or illness and can’t make decisions for yourself, the enduring power of attorney gives decision making power to the person you’ve nominated, so it’s a very important document for everyone, young and old alike. The kinds of decisions your attorney can make include:-
- financial attorney: paying bills, dealing with Centrelink, taxation, investments, legal matters and property management
- personal/health attorney: your living arrangements, your health care, your diet and dress
Advance Health Directives
In Queensland, Advance Health Directives help you plan what medical treatment or health care you would wish to have in the event that you are too ill to make those kinds of decisions for yourself. You can specify exactly what treatment is and is not acceptable to you, or you can appoint an attorney you trust to make those kinds of decisions on your behalf. You’re also able to make any special information known to medical staff through this document, such as allergies to medication or religious beliefs that impact upon the types of treatments acceptable to you.
It is a good idea to have both an Advance Health Directive and a Power of Attorney in place. If you become so ill that you can’t make decisions for yourself, these two documents together, will direct and empower your attorney when making necessary decisions on your behalf.
Who can make a Power of Attorney or Advance Health Directive?
Anyone over the age of 18 who has the capacity to understand the nature and consequences of the document, who makes the document of their own free will and who can communicate clearly their instructions.
When should I make a Power of Attorney or an Advance Health Directive?
Right now, before you need it, is the best possible time, especially if you are going into hospital, or if you have a medical condition which could deteriorate and diminish your ability to make decisions.
Who should I appoint to be my Attorney?
You need to appoint someone you trust to make the right decisions. You can appoint more than one person if you wish, and you can specify exactly how they make their decisions – jointly, separately, as a majority, successively – or perhaps a combination of these options.
For financial decisions, make sure that the person you appoint has the necessary skills to deal with your finances.
Who should I talk to about it?
It’s important that you discuss these documents with a lawyer who can give you professional advice about your particular circumstances. It’s also necessary for you to discuss your Advance Health Directive with your doctor, as they can explain the terminology involved. It’s also generally a good idea to discuss your wishes with your family to avoid unnecessary conflict and stress.
Do I need a witness?
Yes, your signature must be witnessed by a lawyer, a notary public, a commissioner for declarations or a justice of the peace. Your witness cannot be your attorney, a relative or a relative of your attorney, a health care provider or paid carer. With an Advance Health Directive, your witness cannot be a beneficiary under your will.
Can I change my mind?
Yes, as long as you still have the decision making capacity to do so, you can revoke or change these documents. This has to be done in a legally binding way, however, so please seek legal advice.
Contact us to find out more or to arrange a consultation.
Ageing is challenging, not only for the individual but also for the individual’s family. We can help you navigate the challenges.
I am acting as an attorney. What are my duties?
Some of your key duties as an attorney include:
- to keep very clear and accurate records of the manner in which you have managed the principal’s affairs;
- to keep your property separate from the principal’s property;
- to avoid any transaction where your interests and the interests of the principal may conflict;
- to not gain advantage from your position.
If you breach your duties, you may be penalised or ordered to pay compensation to the principal. You should seek advice about your role to ensure that you are fully informed about your powers, duties and rights, so that mistakes are not inadvertently made.
My loved one has lost capacity but doesn’t have an enduring power of attorney. What should I do?
An enduring power of attorney document is the key to a person’s life plan. If the person loses capacity without having made an enduring power of attorney document, it can create a situation where no one is technically authorised to manage the person’s financial affairs.
Generally, and particularly if there is no indication that the person’s cognitive function will improve, an application to the Queensland Civil and Administrative Tribunal (QCAT) will be required to appoint an administrator (to manage financial matters) and possibly a guardian (to manage personal and health matters).
We can guide you through this process.
I would like to move in with my child. Are there any legal issues to address?
Lots of families consider the option of a ‘granny flat’ arrangement when an ageing parent’s needs advance to the extent that the parent cannot live independently, but does not wish to moved into aged care.
Sometimes this involves a financial contribution by the elderly parent to the child with whom they intend to live. Perhaps the payment is to reduce the mortgage of the child or to finance necessary improvements to the residence.
This arrangement, if not undertaken properly can leave both the child and the elderly parent exposed to risk and the breakdown of a once happy and loving relationship.
Contact us to discuss these risks and how to avoid them.