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A Will is a legal document that directs how your property is to be distributed following your death.
You Will gives you the opportunity to appoint a trusted person (or preferably a group of people) to act as the Executor of your Estate. Your Executors will:
If you have minor children, you can also appoint a Guardian(s) who will look after and care for your children following your death.
Planning for the future might be scary, but it is also something that every adult needs to consider and make arrangements for. Trust us – you will feel much better once you have your affairs in order.
Often people try to avoid engaging a lawyer to assist them in drafting a Will and instead opt for a ‘do-it-yourself will kit’. These documents can be problematic, especially if they include provisions which are not sufficiently certain, or they are not completed correctly.
There are legal requirements to comply with when making a Will, and if such formalities are not in place, legal costs could be incurred by your estate to prove that your Will is in fact a true representation of your testamentary wishes. The process of proving a homemade Will can be more expensive and time consuming than it would have been to engage a lawyer from the beginning.
Your Deceased Estate is the sum of your assets (including any property, shares, business interests, personal assets, legal interests and death benefits) less all of your liabilities (funeral expenses, debts, tax liabilities and any expenses incurred in winding up your Estate).
Your Will should grant your Executor(s) the power to call in and, where appropriate, to sell and convert the same into money any assets of the Estate. Your Executor will then hold your assets on trust to distribute the balance of your Estate to your beneficiaries in accordance with the terms of your Will.
If a loved one has recently passed away and you are trying to figure out whether they have left a Will, we recommend making the following enquiries:
If a person dies in Queensland leaving property, whether real or personal, and leaves a Will, then the person named in the Will as the Executor(s) should apply to the Supreme Court of Queensland for probate of the Will. Probate grants the Executor(s) the authority to deal with the deceased’s Estate.
If you are appointed as an Executor under a Will, we can assist you with navigating the Probate Application process, including completing the relevant advertising requirements and filing the necessary forms with the Supreme Court of Queensland.
If you die without a Will, the laws of intestacy will apply to your Estate. This means that your assets may be sold to satisfy debts and will be shared among your relatives. If a deceased is survived by their spouse and children, their spouse will receive the household chattels (furniture, whitegoods etc.), the first $150,000.00 of the Estate and either half or a third of the residue of the Estate (depending on the make-up of your family). The children will receive the balance of the Estate equally between them. This can be problematic where you have recently separated from a spouse, have estranged relationships with any of your children, have remarried and have step-children, or wish to make particular provisions for certain family members.
Dying without a Will means that your family members will need to apply for Letters of Administration and each stake their claim for an interest in your Estate.
You may also need to apply for Letters of Administration (with a Will) where the Will fails to appoint someone to act as your executor, or the executor that was appointed is unwilling or unable to act in that position and no alternative person is appointed by the Will.
An application for letters of administration will be made to the Supreme Court of Queensland. You will need to complete a number of forms and provide original documents in support of your application.
Applications for Letters of Administration can be a slow, expensive process for your family members to endure when they are already grieving your death. Your family members may also struggle to agree on how your Estate should be administered, which could lead to unwanted disputes between family members. This is not a pleasant experience and not one that you would wish to impose on anyone. It is far easier to draft a Will with comprehensive instructions to your executors on how and to who your Estate should be left.
Stone Group Lawyers regularly advise clients on all aspects of estate planning, from setting up testamentary trusts for your beneficiaries, distributing your assets, dealing with superannuation and life insurance, and appointing guardians for your minor children.
One often overlooked consequence of death is the potential for taxation on the assets of the deceased. The transfer of assets from your estate to your family could have significant consequences on your family’s taxation liabilities. Stone Group Lawyers will work to minimise those taxation liabilities and preserve your legacy for the benefit of your loved ones.
An Advance Health Directive is a document that states your wishes or directions regarding your future health care for various medical conditions. It comes into effect only if you are unable to make your own decisions.
Under your Advance Health Directive, you can appoint up to three trusted friends and family members to act one your behalf for personal/health matters. In the document, you provide directions to your attorneys on the types of treatments and care that you do or do not wish to receive.
If you do not already have a Power of Attorney or an Advance Health Directive in place, then Stone Group Lawyers can assist you in drafting these as well.
