Planning for the future is a responsibility we all share, and it becomes even more crucial when it comes to our estates. While the topic may seem daunting, understanding estate law is essential to ensure your final wishes are respected and your loved ones are provided for.
Estate law governs the distribution of assets, property, and possessions upon a person’s death. By familiarising yourself with the relevant laws, you can have greater control over what happens to your estate and avoid potential complications for your loved ones.
This article aims to give you a snapshot of everything you need to know about estate law, however for specific questions please reach out to us here and we can discuss your circumstances.
What is a will?
A will is a legal document that outlines how you want your assets to be distributed after your passing. It serves as a roadmap for your loved ones, providing them with guidance on how to handle your estate.
Your will can cover various aspects, including the appointment of an executor to oversee the distribution process, naming guardians for children, and specific bequests to individuals or charitable organisations. Having a valid will in place is crucial, regardless of the size or complexity of your estate.
How to create a valid will in Queensland:
To ensure the validity of your will in Queensland, there are several essential requirements to consider:
- Testamentary Capacity: You must be of sound mind and over the age of 18 to create a will. It is essential to draft your will while you are mentally capable to avoid potential challenges to its validity later.
- Proper Execution: Your will must be in writing, signed by you in the presence of two adult witnesses, who must also sign the document. The witnesses should not be beneficiaries or spouses of beneficiaries mentioned in the will.
- Clarity and Specificity: Your will should be clear and unambiguous, leaving no room for misinterpretation. Clearly identify your assets, beneficiaries, and any specific instructions you wish to include.
- Appointing an Executor: Designating an executor, who will be responsible for administering your estate, is a crucial step. Choose someone you trust to handle your affairs diligently and consider seeking legal advice to ensure the appointment aligns with legal requirements.
Common issues that can arise with wills, and how to avoid them:
Even with careful planning, certain issues can still arise with wills. Some common challenges include:
Lack of validity: Failing to meet the legal requirements for creating a will can lead to disputes and the potential invalidation of the document. Engaging a qualified estate lawyer can help ensure your will complies with all legal formalities.
Ambiguity and unclear instructions: Vague or poorly-worded provisions in a will can lead to confusion or disputes among beneficiaries. It is crucial to be specific and clear when expressing your intentions to avoid potential misunderstandings.
Inadequate updating: Life events such as marriage, divorce, the birth of children, or changes in financial circumstances can significantly impact your estate plan. Regularly reviewing and updating your will ensures it remains reflective of your current wishes and circumstances. See a more comprehensive list of when to update your will below.
When to Update Your Will:
Updating your will is necessary when there are significant life changes or alterations in your financial situation. Here are some instances that may warrant an update:
- Marriage, divorce, or separation
- Birth or adoption of children or grandchildren
- Death of a beneficiary
- Death of a beneficiary or executor
- Acquisition or sale of significant assets
- Changes in financial investments or accounts
- Relocation to a different jurisdiction
- Changes in tax laws or regulations
- Changes in your relationship with potential beneficiaries
- Changes in charitable intentions or philanthropic goals
Updating your will ensures that it remains relevant and accurately reflects your current wishes.
What happens if you die without a will in Queensland:
Dying without a will, also known as dying intestate, means that the distribution of your assets and possessions will be determined according to the laws of intestacy in Queensland. Without clear instructions from a will, your estate may be subject to a standardised legal framework, which may not align with your personal wishes or intentions.
How your estate is distributed under the rules of intestacy:
The rules of intestacy in Queensland outline a specific order of priority for distributing an estate when there is no valid will. Below is a general overview of how the estate is typically distributed.
Spouse or domestic partner: If you have a surviving spouse or domestic partner and no children, they are entitled to the entire estate.
If you have a spouse or domestic partner and children, the spouse or domestic partner is entitled to the household assets, a statutory legacy, and a share of the remaining estate. The children will receive the remaining share.
Children: If you have children but no spouse or domestic partner, your estate will be divided equally among your children.
Parents: If you have no spouse, domestic partner, or children, your parents are next in line to inherit your estate. It will be divided equally between them or given entirely to the surviving parent.
Siblings: If you have no spouse, domestic partner, children, or surviving parents, your estate will be distributed equally among your siblings and the children of any siblings who pass away before you.
Grandparents: In the absence of any of the above-mentioned relatives, your estate may be distributed among your grandparents.
Extended Family: If there are no surviving close relatives, the distribution may extend to other relatives according to the rules of intestacy in Queensland.
It is important to note that the specific distribution may vary depending on individual circumstances, and seeking legal advice from a qualified estate lawyer is crucial to understand the exact implications in your situation.
Who has the right to apply for Letters of Administration:
When someone dies intestate, the responsibility of administering the estate falls on the shoulders of an individual appointed as the administrator. The administrator is typically a close family member, and their role is similar to that of an executor appointed in a will.
In Queensland, the order of priority for applying for letters of administration is generally as follows:
- Spouse or Domestic Partner: The surviving spouse or domestic partner has the first right to apply for letters of administration.
- Children: If there is no surviving spouse or domestic partner, the children may apply.
- Grandchildren or great grandchildren: If there is no surviving spouse or child, then the grandchildren or great grandchildren may apply for letters of administration.
- Parents: In the absence of a surviving spouse, domestic partner, children or grand children, the parents may apply for letters of administration.
- Siblings: If no spouse, domestic partner, children, grand children, or parents are alive, siblings can apply.
- Other Relatives: If no eligible family members as mentioned above exist, other relatives may have the right to apply.
What is probate?
Probate is a legal process that confirms the validity of a deceased person’s will and grants authority to the executor(s) named in the will to administer the estate. It provides an official recognition from the court that the will is the last valid will of the deceased and authorises the executor(s) to act on behalf of the estate.
When is probate required in Queensland?
In Queensland, probate is generally required when the deceased individual owned assets solely in their name, and the value of the assets exceeds a certain threshold. The threshold can vary but is often around $50,000. However, different financial institutions and organisations may have varying requirements, and it is advisable to seek legal advice to determine if probate is necessary in your specific situation.
It is important to note that probate may not be necessary in certain circumstances, such as when assets are jointly owned with another person with rights of survivorship or when assets are held in a trust. Seeking professional guidance can help you determine whether probate is required in your case.
The process of obtaining probate in Queensland:
The process of obtaining probate in Queensland generally involves the following steps:
- Initiating the application: The executor(s) named in the will need to initiate the application for probate. They should gather all relevant documents, including the original will, death certificate, and details of the deceased’s assets and liabilities.
- Advertisement and waiting period: The executor(s) may need to place a public notice in the prescribed form, informing potential creditors and interested parties of the deceased’s passing and the intention to apply for probate. This notice allows a waiting period of fourteen days for any claims or objections to be raised.
- Preparing the application: The executor(s) will need to prepare the necessary probate application forms, including an affidavit, and provide supporting documentation. The application forms can be obtained from the Queensland Courts website here or through legal professionals.
- Lodging the application: The completed application forms, along with the supporting documents, need to be lodged with the Supreme Court of Queensland. A filing fee is typically required at this stage. It is advisable to seek legal assistance to ensure accurate and timely submission of the application.
- Grant of probate: Once the waiting period has passed, and if there are no objections or disputes, the court will review the application. If satisfied with the documentation and the validity of the will, the court will issue the grant of probate. This grant confirms the executor(s)’ authority to administer the estate.
- Estate administration: With the grant of probate in hand, the executor(s) can proceed to gather the deceased’s assets, pay any outstanding debts or taxes, and distribute the estate according to the instructions in the will.
Power of Attorney
Planning for the future involves not only preparing for the distribution of assets but also ensuring that your financial and personal affairs are managed effectively in the event you are unable to do so yourself. One essential legal tool that can facilitate this is a power of attorney.
What is a power of attorney?
A power of attorney is a legal document that grants someone else the authority to make decisions on your behalf regarding your financial, legal, and personal matters. The person granting this authority is referred to as the “principal” or “donor,” while the person receiving the authority is the “attorney” or “donee.” A power of attorney ensures that your affairs are managed according to your wishes when you are unable to do so due to various reasons, such as illness, absence, or incapacity.
Types of powers of attorney in Queensland:
General power of attorney: A general power of attorney is typically used for a specific time period or purpose and is often utilised when the principal expects a temporary inability to manage their affairs, such as during a lengthy absence or hospitalisation. This type of power of attorney ceases to be valid if the principal loses capacity.
Enduring Power of Attorney: An enduring power of attorney remains valid even if the principal loses decision-making capacity. It grants the attorney the authority to continue managing the principal’s affairs when they are no longer capable of doing so themselves. An enduring power of attorney can cover financial matters, personal and health matters, or both.
How to create a valid power of attorney:
To create a valid power of attorney in Queensland, certain requirements must be fulfilled:
- Capacity: The principal must have the legal capacity to understand the nature and consequences of granting a power of attorney. They must be of sound mind and over the age of 18.
- Formalities: The power of attorney must be in writing and properly executed according to the requirements outlined in the Powers of Attorney Act 1998. This includes the principal signing the document in the presence of a qualified witness.
- Attorney selection: The principal should carefully select their attorney, considering someone they trust implicitly to act in their best interests. It is advisable to discuss the responsibilities and scope of authority with the chosen attorney beforehand.
- Legal advice: Seeking legal advice from a qualified professional is highly recommended when creating a power of attorney. They can provide guidance, ensure compliance with legal requirements, and help tailor the document to meet your specific needs and circumstances.
When a Power of Attorney Ends:
A power of attorney can come to an end under various circumstances, including:
- Revocation: The principal has the right to revoke or cancel the power of attorney at any time, as long as they have the capacity to do so.
- Death: The power of attorney ends upon the death of the principal. After this, the executor of the principal’s estate takes over the administration.
- Resignation or removal: The attorney may resign from their role, or in certain situations, the court may remove an attorney for misconduct or failure to fulfil their duties.
Advance Health Directives
What is an advance health directive?
An advance health directive is a legal document that allows individuals to specify their healthcare preferences, treatment decisions, and end-of-life choices. It empowers individuals to maintain control over their medical care even if they become unable to communicate or make decisions due to illness, incapacity, or injury. An advance health directive ensures that healthcare providers and loved ones are aware of your wishes and can honour them when you are unable to express them yourself.
How to Create a Valid Advance Health Directive in Queensland:
Creating a valid advance health directive in Queensland involves the following steps:
- Capacity: The individual must have the legal capacity to understand the nature and consequences of creating an advance health directive. It is advisable to consult a healthcare professional or legal expert to assess capacity if there are any concerns.
- Formalities: The advance health directive must be in writing and comply with the requirements set out in the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000. This includes signing and dating the document in the presence of two qualified witnesses who are not beneficiaries of the directive or involved in the individual’s healthcare.
- Clarity and specificity: The advance health directive should clearly state your wishes regarding medical treatment, end-of-life decisions, and any specific instructions or restrictions. It is important to be as specific as possible to guide healthcare providers and ensure your preferences are respected.
- Communication: It is crucial to discuss your advance health directive with your healthcare providers, family members, and loved ones. Providing them with copies of the directive and discussing its contents can help ensure that everyone is aware of your wishes and can act accordingly.
Decisions that can be made in an Advance Health Directive:
An advance health directive allows individuals to make various decisions related to their healthcare and medical treatment, including:
- Treatment preferences: You can express your preferences for specific medical treatments, interventions, or therapies you would like to receive or refuse under different circumstances.
- End-of-life decisions: You can provide instructions regarding end-of-life care, such as decisions about life-sustaining treatment, artificial nutrition and hydration, and palliative care.
- Personal values and beliefs: You can outline any religious, cultural, or personal beliefs that may influence your healthcare decisions.
Updating or revoking an advance health directive:
To update or revoke an advance health directive in Queensland, follow these steps:
- Create a new directive: If you wish to make changes, create a new advance health directive that supersedes the previous one. Clearly state that it revokes any prior directives. You may also revoke the existing advance health directive in writing without creating a new one.
- Communication: Inform your healthcare providers, attorney family members, and loved ones about the update or revocation of your advance health directive. Provide them with copies of the new document and discuss its contents.
- Notify relevant parties: If you have lodged your directive with any healthcare facilities or organisations, notify them about the update or revocation and provide them with the latest version.
Contesting a Will
Grounds for Contesting a Will in Queensland:
Lack of Testamentary Capacity: If the deceased person did not have the mental capacity to understand the nature and consequences of making a will at the time of its creation, the will may be deemed invalid.
Undue influence: If it can be proven that the deceased was unduly influenced or coerced into making or altering their will, the court may invalidate the will.
Lack of proper execution: A will must meet specific legal requirements to be considered valid. If the will was not properly executed, such as not being signed by the testator in the presence of witnesses, it may be contested.
Fraud or Forgery: If there is evidence of fraud or forgery in relation to the creation or alteration of a will, it can be contested on these grounds.
Who Can Contest a Will:
Eligible Persons: Eligible persons under the Succession Act 1981 include spouses, de facto partners, children, stepchildren, and dependents of the deceased. In some cases, parents and other dependents may also be eligible.
Persons promised provision: Individuals who were promised financial provision by the deceased but were not included in the will may also have grounds to contest the will.
Time Limits for Contesting a Will in Queensland:
It is crucial to be aware of the time limits for contesting a will in Queensland. The usual time limit is within six months from the date of the grant of probate or letters of administration. However, there are circumstances where the court may grant an extension of time, especially if there are valid reasons for the delay. Seeking legal advice as early as possible is advisable to ensure compliance with the applicable time limits.
How to Contest a Will in Queensland:
Contesting a will involves a legal process that typically includes the following steps:
- Seek legal advice: Consult an experienced estate litigation lawyer who can assess the merits of your case, advise you on your rights, and guide you through the process.
- Gather evidence: Collect all relevant documents, including the will, any previous versions of the will, medical records, and any evidence supporting your grounds for contesting the will.
- Mediation or negotiation: In most cases, mediation or negotiation may be attempted to reach a resolution without going to court. This can involve discussions with the executor or beneficiaries to try and settle the dispute amicably.
Court proceedings: If a resolution cannot be reached, court proceedings may be necessary. Your lawyer will prepare the required documents, present the evidence, and argue your case before the court.