Wills and Estates

Most people do not look forward to estate planning and put off the task of making a Will. However, without a Will, your family is left without clear instructions on how to manage your affairs and distribute your assets after you die. Planning your estate is a gift that you can give to your loved ones. We can assist with:

• Preparing or reviewing a Will
• Estate planning
• Applying for Probate and Letters of Administration
• Deceased estate administration
• Defending and contesting wills
• Supreme Court estate litigation

Making your Will

A Will is a formal document that allows you to record your wishes for the distribution of your property after you die. It appoints one or more executors to oversee the administration of your affairs, lists your beneficiaries, and may also appoint guardians for any minor children you leave behind. A Will is important for every adult and even more so for those with young children, complicated family relationships or complex assets.

In Queensland, if you die without a Will, you die ‘intestate’ and legislation determines who inherits your property. Administering an intestate estate is also more difficult, expensive, and time-consuming for your loved ones. The rules of intestacy provide for a specific order of distribution to the deceased person’s next of kin designed to reflect society’s expectations. But what happens if you do not wish your estate to be distributed this way? These are questions that are personal to you, and a Will is an instrument that allows you to formalise these decisions.

Why use a Lawyer to Prepare your Will?

For a Will to be valid, it must meet certain legal requirements. For example, if the Will is not correctly signed or witnessed, there is a risk that it may be invalid or contested after you die. A lawyer can ensure that your Will is clear, free from ambiguity, and correctly signed and witnessed.

We will consider your individual circumstances, assets, and family dynamics so your Will is structured to best protect those you love and your hard-earned assets and, wherever possible, minimise the potential for disputes to arise after you die.

Wills for Blended Families

There is no one-fit solution when it comes to estate planning for the blended family. The dynamics and needs within families evolve and personal assets may fluctuate from year to year. However, by identifying the potential issues that might arise within each family unit, and considering some options to address these, an effective estate plan can be implemented. The important thing is to discuss your circumstances and objectives with your lawyer so that your wishes can be properly set out in your Will and other estate planning documents.

Are you the Executor of an Estate?

If you have been appointed as the executor for a deceased estate, you may be feeling overwhelmed. While some people do undertake all the duties of an executor by themselves, most find that they need the assistance of a lawyer, particularly if they need to apply to the Court for probate.

Applying for probate is the process of asking the Court to confirm the validity of a Will which empowers the executor to carry out the deceased’s wishes and distribute assets. Usually, banks and other organisations will not release large assets for distribution to beneficiaries unless the executor has obtained probate.

Sometimes it is not necessary to apply for probate, especially if the only significant asset of the estate is a property that is jointly owned with another person. In that case, the surviving owner automatically takes full ownership of the property.

Family Provision Claims

The law in Queensland provides an avenue for someone to contest the decisions contained in a Will. Generally, if an ‘eligible’ person thinks that they should have received more from a Will, they may be entitled to make a family provision claim through the Supreme Court.

In Queensland, only the deceased’s spouse, child, or dependent is eligible to make a family provision claim. A ‘spouse’ includes a de facto partner, and perhaps more surprisingly, a former spouse. This means that your ex-husband or ex-wife may be an eligible person to contest your Will. A ‘child’ means a biological, adopted, or stepchild. The final category is the most difficult to define because a ‘dependent’ includes anyone who depended financially on the deceased person. This means that a more distant relative or friend can contest your Will, if they can establish financial dependence.

Estate disputes can be complex and emotionally draining. Many, however, can be settled without litigation. Whether you are pursuing or defending a family provision claim we can help. We will provide considered advice and guidance to help reach a fair out-of-court settlement wherever possible.

If you need assistance, contact [email protected] or call 07 3733 1390 for expert legal advice.