Estates, Wills and Probate

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A will is a legal document that says what you would like to happen with your money, belongings and other assets (your estate) when you pass away.  In short, it’s your last say!  Your will names who you want to give your estate to (your beneficiaries) and who you would like to administer your estate when you pass away (your executor)  “

Wills 

A will is a legal document that says what you would like to happen with your money, belongings and other assets (your estate) when you pass away.  In short, it’s your last say!  Your will names who you want to give your estate to (your beneficiaries) and who you would like to administer your estate when you pass away (your executor)  “

What if I die without a Will?
If you do not make a legal Will your estate will be distributed in accordance with the Succession Act 1981 Qld.

Dying intestate, that is without a valid Will, may incur additional costs to your estate and your loved ones by having the Court appoint a Legal Representative for your Estate. There is no guarantee that your assets will be distributed as you would like and your family or friends may not be provided for as you wish

Why do I Need a Will?

A will allows you to name one or more guardians for your children, establish a trust to provide for your children or a person with a disability, preserve your assets, give money to charity.

Who can make a will?

To make a valid will, you must be at least 18 years old, and of sound mind, memory and understanding.

In order to be valid your will must be in writing and be signed by you in front of 2 witnesses, both of whom must be over 18 years old, not visually impaired and preferably not be included as beneficiaries in the will.

In certain circumstances the Supreme Court of Queensland can sometimes approve a will being made for someone who cannot legally make a will themselves.

What is a Trustee/Executor of a Will?

The Executor and Trustee are the person or persons responsible for making sure that your wishes are carried out on your behalf once you have passed away.  They are responsible for obtaining Probate (if required) calling in assets, paying estate debts and liabilities and distribution of the Estate in accordance with the provisions of your Will.

In rare circumstances an executor may continue any litigation on behalf of the deceased or the Estate.

When to update your will

You can review your will as often as you like but we recommend that you should review your will at least every 3–5 years to ensure it still reflects your wishes and your current circumstances.

You may need to update your will if: –

  • you get married or start a de facto relationship,
  • you get divorced or your marriage is annulled or you end a de facto,
  • you have children or grandchildren you wish to include as beneficiaries in your will,
  • your assets or financial circumstances change,
  • any person named as a beneficiary in your will pass away,
  • any person named as an executor, trustee or guardian in your will passes away or becomes unable or unwilling to act due to age, ill-health or for any other reason.

If you get married or start a civil partnership, your will is officially cancelled by that marriage or civil partnership, except in circumstances where you make a gift to your spouse or civil partner or nominate them as an executor, trustee or guardian, and your Will is shown to have been made or drafted with marriage or a civil partnership in mind.

While a Divorce does not cancel your will, it does cancel any provisions made in favour of your former spouse, as well as any appointment of that former spouse as an executor, trustee or guardian.

 

Probate

 

Probate is the legal process of proving and registering the last Will of a deceased person in the Supreme Court of Queensland.

It is usually the executor of the Will who administers the estate and handles the disposal of the assets and liabilities or debts. In order to get authority to do this, the executor often needs to obtain a legal document called a ‘Grant of Probate    “

Do we need to apply for Probate?

There is no hard and fast rule to when probate is required and often different banks have different amounts or caps that they require probate for.  For example, one bank may require probate if the deceased has accounts over $30,000.00 and another may require Probate for accounts over $50,000.00 or more.

Like wise to affect the transfer of real property such as a house probate may be required by the Land Titles office if the balance of the Estate (not including the house) is over $300,000.00.

How Do I apply for Probate?

To obtain a Grant of Probate, the executor named in the Will must apply to the Probate Office of the Supreme Court.  If their application is approved, the executor is given a Grant of Probate and management of the deceased’s assets is then transferred to the executor.

If a deceased person does not have a Will the same process is done with a similar document known as ‘letters of administration’.

Would you benefit from talking to us to resolve your most immediate questions?

We will review your situation and give you the practical advice you need right now.

Ask about our fixed fee for an Application for Probate.

 

Estates 

You have probate, or you don’t need it, what next?  How do you give the beneficiaries their gifts? Shares? How do you sell the house/get back the retirement village bond?  Estates come in all shapes and sizes.  But no matter the size or how much an estate is worth they pretty much require the same steps  “

What is an Estate?

When we talk about estates we are referring to pretty much all of the property a person has when they die.  This can include, personal effects, savings, superannuation, life insurance, houses, car, boats, shares, investments and accommodation bonds.  Any debts or liabilities the deceased had at the time of death, such as mobile phone plans, credit cards, medical bills, mortgages, electricity and insurance are also included and will need to be dealt with.

No matter how big or small the estate is, the executor will need to take steps to deal with the assets and liabilities and may even need assistance in transferring a car or a house over to the surviving spouse or beneficiaries.

Often banks and other organisations will require a number of forms to be filled out and documents including certified copies of a will or Death certificate to be provided to them before they will release any assets.  This can be time consuming and very confusing.

Of Course, once those matters have been taken care of the estate (or remainder of the Estate) will then need to be divided up between the beneficiaries.

Whether you need assistance in in transferring property, calling in assets from the bank or just want some general advice and assistance Lee-Anne can help you.

We are happy to take care of the whole matter for you or simply provide some advice and assistance from time to time as you need it.  It’s your choice.

The most important thing is that you know and understand what is required when dealing with an estate, what your obligations are and what steps you may need to take.

Would you benefit from talking to us to resolve your most immediate questions?

We will review your situation and give you the practical advice you need right now.

Contesting Estates 

Left out of the will?  Do you need to contest the estate?  Family provision claims.

In Queensland if a person has been left out of a Will or adequate provision for their welfare and future needs has not been made, a person may challenge a Will through what is known as a Family Provision Claim.

Who can Contest a Will in Queensland?

In order to contest a Will in Queensland you must be either a spouse, a child or dependent upon the deceased.

Are there any time frames to contest a Will?

You should be given written notice to the executor of the Estate within 6 months of the date of death and file your court documents within 9 months of the date of death.

If you have not given your written notice within 6 months of the date of death you may still be able to proceed if the Estate has not been distributed.

If you are considering contesting a Will don’t wait.  Book an appointment today.  We can advise you of the relevant legal requirements, time frames and advise you of possible outcomes given your particular circumstances.

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