Wills & Estate Planning
A Will ensures that when you pass, your belongings go to those you love. We all accept that one day we will die.
When that day comes, if you don’t have a Will your assets could be distributed in a way that you would never have intended. The making of a will can be one of the most crucial legal acts of your lifetime. While it is not a legal requirement that you have one, a proper Will should assist in preventing any unwanted financial difficulties that may arise where there is no will and disputes arise.
If you die without making a Will, then you are said to have died 'intestate' which means that your estate will be dealt with in accordance with the provisions of the Succession Act 1981 (Qld) which nominates your beneficiaries for you and requires your property to be dealt with in certain ways, for instance, a possible forced sale of the family home or car to meet the claims of beneficiaries entitled to a share of your estate.
In our experience “do it yourself Wills” are rarely completed properly and may be invalid. To ensure that your assets are distributed in accordance with your wishes you should have a Lawyer prepare your Will.
Things that you should consider in relation to your Will include:-
- directions relating to guardians for your infant children;
- details of your funeral wishes and cremation or burial directions;
- the appointment of the person or persons you want as your Executor(s). That is, the person(s) you trust upon your death to call in your Estates assets, pay any debts or expenses relating to your Estate and ultimately, distributing to your beneficiaries pursuant to the directions in your Will. This will ordinarily be a family member or friend and does not need to be a paid trustee company;
- your family members and their needs.
Once you have made a Will it should be kept safe. Ordinarily, we would keep the original of your Will in our safe custody and with over 100 years of experience in making Wills and in excess of 1000 Wills held in our safe custody you can be assured it will be in safe hands.
A Will can be changed once they have been made and it is thus not necessary that you make final decisions now that you must abide by for the remainder of your lifetime. However, if you wish to make a change, it must be documented via a codicil or upon the original document. Unless the change is minor, it is usually best practice to simply make a new Will and revoke your previous one. Remember that until you formally and officially change your existing Will, your current wishes may not be reflected if you die before effecting the change, so it is important to make the change as soon as possible once your wishes change.
If you have made a Will with us, changing your Will is usually quick and inexpensive and you can simply come back and see us as the need arises from time to time.
We invite you to contact one of our experienced Lawyers to discuss your needs and to review your current documents to ensure that they will achieve your goals.
You can take control now through good planning.
It is necessary in the making of a will that you take into consideration various factors in addition to the distribution of your assets in accordance with your wishes upon your death. We can assist you with the identification and consideration of such issues including legal obligations and taxation issues in succession law.
Proper estate planning may involve the establishment of testamentary trusts or life estates. A testamentary trust is when an asset (eg. cash) must be held on behalf of a beneficiary who for whatever reason cannot yet receive it themselves. The trustee holds the asset on behalf of the beneficiary until it can be paid to them. In the case of cash it would be invested.
In the absence of proper estate planning your family members could be left with unwanted burden in difficult times. We accordingly recommend that you speak to us about the ways you can avoid that.
Deceased Estate Administration can be complicated and involve risks.
Upon someone’s death their Estate is handled by their executor(s) appointed under their Will (or if they did not have a valid Will, by an Administrator entitled to act pursuant to the law of Intestacy).
Choosing your executor is a very important decision as they will be entrusted to deal with all your affairs to your wishes. They must also be aware of their legal responsibilities as an executor and be capable of understanding the financial aspects of administering an estate. An executor will also need to be capable of dealing with any disputes that arise because of the Will, which happens from time to time.
The Executors/Administrators duties include following any funeral directions and arranging the funeral; reducing the estate of the deceased into possession, that is, to deal with the banks, land registries, share registries and other authorities to bring the assets into the estate; paying the debts of the deceased (reporting to the ATO to finalise taxation if any) and finally, distributing the estate to those entitled under the Will or Intestacy Rules.
In Queensland, our laws recognise the right to “informally” administer an estate where the asset holders (ie banks, share registries, land registry) will allow.
Depending on the type and value of the Estates assets, the Executors/Administrators may be able to dispense with the need to obtain formal Grant of Probate of the Will or Letters of Administration (thereby saving considerable expense to the Estate otherwise incurred in such Supreme Court applications).
Executors/Administrators should be advised of any potential claimants who can contest an Estate and their own duties/ potential liabilities in administering an estate.
If you have been appointed an executor of a Will, you can seek legal and financial advice on the proper way to administer a deceased estate in accordance with your legal obligations and ensure your role is performed effectively.
We pride ourselves on being able to provide advice to deal with estate administration without undue complication or risks in a timely and professional manner.