Estate Planning and Wills

Your estate is distributed under the intestacy rules in the Succession Act 1981 (Qld), which set a fixed order of entitlement among spouse, children and other relatives. That order will not reflect blended families, business interests or anything you intended, and someone must apply for letters of administration before anything can be dealt with. It is slower, more expensive and rarely what people would have chosen.

A trust created by your will rather than during your lifetime, holding assets for beneficiaries instead of transferring them outright. They are commonly used for asset protection, for beneficiaries who are young, vulnerable or in unstable relationships, and for income-splitting flexibility. They add cost and administration, so the question is whether the circumstances justify it.

A spouse (including de facto), child (including step and adopted children) or a dependant may apply for further provision. In Queensland, written notice of an intended claim must generally be given to the executor within six months of death, and the application filed within nine months. Those periods are short, and an executor who distributes early can be personally exposed.

A document appointing someone to make financial and, if you choose, personal and health decisions for you — with the financial power able to operate while you still have capacity if you wish, and the personal and health powers taking effect only if you lose capacity. Without one, an application to QCAT for an administrator or guardian may be needed.

A document recording your wishes about future health care, including treatment you would refuse, that takes effect if you cannot make or communicate those decisions. It can also appoint an attorney for health matters. It removes the burden of guessing from your family at the worst possible moment.

Identify and secure the assets, obtain a grant of probate if required, pay the debts, tax and expenses of the estate, deal with any claims, and distribute according to the will — keeping proper records throughout. Executors owe fiduciary duties and can be personally liable for getting it wrong, which is why most take advice rather than working it out alone.

Not always. Whether a grant is needed depends on what the estate holds and what each asset holder requires — many banks release modest balances without one, while real property and larger holdings almost always need it. It is worth confirming before assuming either way.

Yes. A will can be attacked for lack of testamentary capacity, lack of knowledge and approval, undue influence, or failure to meet formal requirements. Disputes also arise about the interpretation of a will or trust deed and about the conduct of executors and trustees. Contemporaneous evidence matters enormously in these cases, which is another argument for having a will properly prepared.