Your Essential Guide
to Wills in Queensland
www.forgelegal.net
There are many areas of law which most of us will only need to engage with very rarely and in very specific sets of circumstances. One area of law that each and every one of us must consider and engage with however, is Wills and Estates. In fact, to do so is to ensure that our hardearned assets are protected, and our loved ones are looked after. No matter who you are, how much wealth you have or what stage of life you find yourself in, if you live in Queensland the following is certain: 1) You will need a Will 2) You will need an Enduring Power of Attorney ; and 3) At some stage, it is likely that you will act as executor for a deceased estate. For this reason we have prepared this five-part series on Wills and Estates which encompasses this first article on Wills, and will be followed by articles on Enduring Powers of Attorney, Estate Administration, Probate and Family Provision Claims.
www.forgelegal.net
Table of Contents:
01 02 03 04 05 06 07
What is a Will and what is an Enduring Power of Attorney? Do I really need a Will and what happens if I don’t get What happens to all my assets if I pass away without a Will? What is an executor and who should I appoint? How do I divide my estate? What else can I specify in my Will? When should I put my Will in place and is it too soon?
www.forgelegal.net
01
What is a Will and what is an Enduring Power of Attorney?
In simple terms, a Will is a legal document which allows you to plan how you want your assets distributed when you pass away. An important difference between a Will and an Enduring Power of Attorney is, having an Enduring Power of Attorney allows you to appoint somebody to make decisions on your behalf while you are still alive.
You are only one decision away from an empowering and fulfilled life
It is also important to remember a Will only comes into effect once you have passed away. www.forgelegal.net
02
Do I really need a Will and what happens if I don’t get one?
Yes, you do need a Will! There is nothing as simple and as effective as a Will when it comes to protecting your assets and your loved ones. As estate lawyers, we often come across situations where the absence of a Will has resulted in the assets of a deceased family member being distributed in a completely different way than they or their family would have ever imagined. Tragically, this can mean either loved ones going without and having to change and re-evaluate their lifestyles or, the stress of a costly and lengthy family provision claim.
Decisions determine destiny
www.forgelegal.net
03
What happens to all my assets if I pass away without a Will?
If you pass away in Queensland without having a valid Will in place, the way in which your assets can be distributed is determined by something called the ‘Provisions of Intestacy’. This provision is a ‘onesize-fits-all’ set of rules determined by the state government as to how the assets of a person who dies without a Will are to be divided up. As everyone’s personal and family circumstances are unique, the way in which this one-size-fitsall set of rules works can often be very surprising to people who are unaware of it, and to their loved ones after they pass on. For instance, most people believe that their surviving spouse would receive the entirety of their estate. This is not the case!
We think it’s fair to say that this idea would be horrifying to some Queenslanders. Add to this fact that the state government could at any time change the existing intestacy provision laws by altering legislation and it’s clear as to why having a Will is so important.
Courage and confidence are what decision making is all about
Surprisingly, there are situations where the entirety of a deceased estate may go to the state government, in preference to, for instance, a dear friend or carer.
www.forgelegal.net
04
What is an executor and who should I appoint?
The first thing that most Wills specify is who is to act as executor (or executors) of the estate. An executor is the person who will apply for a ‘grant of probate’, collect the assets of the estate, pay out the estate’s debt and distribute the remainder to the specified people in accordance with the Will.
You can appoint multiple persons to act jointly as executors (although we suggest no more than two). Importantly, we always suggest that an alternate executor is appointed for circumstances where your first choice is older than yourself.
The executor may also need to look after and invest estate assets to preserve their value, particularly in circumstances where the entitlement of a person requires a certain age. Given the nature of these responsibilities, it is very important that only people who you trust are appointed as executors. These are usually close family members, but can also be professionals such as solicitors or accountants, who may charge a fee to be paid out of the estate.
Success isn’t just about what you accomplish in your life, it’s about what you inspire others to do
www.forgelegal.net
05
How do I divide my estate?
The first thing to consider when making your Will is whether you wish to give any specific items or sums of money to any specific people, for example, an engagement ring to a granddaughter or $10,000 to a close friend. Not everyone chooses to make specific gifts in their Will, but they can be particularly important when an item has special sentimental value to a family member or loved one. The most important clause in any Will however is the residuary clause. This is the clause which specifies how the residuary of estate (everything that remains after any debt has been paid and any specific gifts have been made) is to be divided.
At Forge Legal, we can draft residuary clauses so that the ongoing persons such as children or grandchildren are taken into account. That way, if one person dies or a new person is born, there is no need to make a new Will. We can also incorporate trust provisions into a Will. There are two ways in which this can be done, estate assets or funds can be controlled by a trustee and gradually distributed for the benefit of a beneficiary, or, invested by a trustee until a beneficiary reaches a certain age.
This can include a number of ‘levels’, whereby the residuary can go to a certain person (for instance, a spouse) if that person survives, or otherwise to another person such as children. www.forgelegal.net
06
What else can I specify in my Will?
Aside from specifying how assets are to be distributed, Wills often contain statements as to the persons intentions regarding a number of other issues. Very often parents will specify a person who they wish to act as the guardian of their minor children upon the passing of themselves and the other parent. Another common addition are the statements of wishes regarding funeral and burial or cremation arrangements. These could be as simple as a statement such as ‘these matters should be determined by the executor’, or go into more
detail around what happens at the ceremony or the location of a memorial. Whilst such statements are nonbinding, they can be a very important and powerful part of the deceased wishes and are often given serious weight and consideration.
Family is not just important, it’s everything
www.forgelegal.net
07
When should I put my Will in place and is it too soon?
It is never too soon to make your Will. At Forge Legal, we make the process streamlined and simple and we draft Wills in such a way that unnecessary amendments later on may be avoided. The laws relating to the validity of Wills in Queensland are stringent and complex. There are countless issues which could render a Will invalid or a contest of a Will successful. It is imperative that you have an experienced solicitor assist in making your Will. There are simply too many formal requirements (and too much at stake for your family) to risk doing it yourself. At Forge Legal, when we draft a Will, our first priority is to ensure that you have a valid Will which will mitigate against any challenge on the grounds of mental incapacity, formal requirements not being met, or allegations of insufficient provision being made to certain relatives or dependents.
Protecting families future is a big part of what we do, so we can immediately identify any risks and make sure those risks are mitigated against. We make it easy, so just head to w w w. fo rg e l e g a l. n e t / o n l i n e will-form, submit the form, and we will reach out to arrange an appointment to futher discuss your wishes and circumstances. Often we can execute your new Will during the appoitment so that your family and your hard-earned wealth are protected.
There is no greater wealth in this world then the peace of mind
www.forgelegal.net
A note from Tracey McMillan, Forge Legal CEO
Education will best help you to save time and money. With education we can move your matter forward faster and more effectively. With the knowledge of three law firms forged into one, we have a wealth of knowledge to share. And we do!
Kelvin Grove Office Unit 4, 70 Prospect Terrace Kelvin Grove QLD 4059
ABN 52 151 687 964
Ph: 1300 036 743 enquiries@forgelegal.net www.forgelegal.net
www.forgelegal.net www.forgelegal.net
