Wills and Estate Lawyers Toowoomba
Your Will is one of the most significant legal documents you will ever sign. No one wants to think about dying. However, it is important to take proactive steps to ensure that your loved ones are provided for in a way that reflects your wishes and protects your legacy.
Planning Your Estate
Estate planning is the process of preparing for the distribution of your assets after your death, ensuring that your wishes are respected and your loved ones are protected. A well-planned estate can help avoid estate disputes, reduce financial stress, and provide peace of mind for your loved ones after you die.
Estate planning involves creating a valid Will, appointing an Executor and determining who you leave your assets to. It also includes considering other important documents, such as powers of attorney and advance health directives. It is crucial to include all types of assets, such as bank accounts, to ensure proper distribution.
Wills
Estate planning is the process of preparing for the distribution of your assets after your death, ensuring that your wishes are respected and your loved ones are protected. A well-planned estate can help avoid estate disputes, reduce financial stress, and provide peace of mind for your loved ones after you die.
Estate planning involves creating a valid Will, appointing an executor, and considering other important documents, such as powers of attorney and advance health directives. It is crucial to include all types of assets, such as bank accounts, to ensure proper distribution.
The Role of Your Executor
An Executor should be someone you trust to carry out your wishes and handle your financial affairs responsibly. An Executor is often a family member, such as your spouse or adult children, a close friend, or a professional, such as a lawyer or accountant. If appointing joint Executors, to avoid disputes between them, you should also consider how well they get along with each other, family members and beneficiaries. An Executor must be 18 years old.
Put simply, your Executor has the primary responsibility of collecting the assets of your estate, making payment of the debts of your estate and distributing your estate to your beneficiaries. It can also be the responsibility of your Executor to arrange and pay for your funeral (though the cost of your funeral is not the Executor’s expense).
If there is a challenge or dispute over your Will, your Executor will be responsible for defending it. This is why you must take great care in selecting an appropriate Executor, as they will ensure that your wishes are upheld.
The Probate Process in Queensland: Ensuring a Legally Valid Will
- In simple terms, “probate” involves an application to the Supreme Court to establish that your Will is legally valid and that the Executor has permission to administer the estate. If you or a loved one dies with specific assets or assets of a particular value, a Grant of Probate is required.
- In Queensland, a probate is applied for and is given to the Executor‘s name in the final will of the deceased. Queensland law allows up to four executors to be appointed simultaneously.
- Probate is usually only needed for assets that were owned solely by the deceased person. For example, where a husband and wife own their assets as joint tenants, those assets will automatically pass to the surviving co-owner without the need to obtain probate.
- The process of obtaining a grant of probate takes around 5-8 weeks in Queensland and involves reviewing the original Will and death certificate of the deceased, preparing a notice of intention to apply for the grant and publishing the notice in the Queensland Law Reporter and the Public Trustee. After 14 days has passed the probate application can be filed.
Why work With Kennedy Spanner Wills and Estates Lawyers?
Our team of lawyers are experienced in Wills & Estate Planning to give you peace of mind by completing a comprehensive review of your circumstances and working with you to create a strategy that suits your needs and wishes. This ensures your assets are protected and that potential conflicts are minimised with the goal of family harmony. What you can expect from our team at your appointment:
- We sit down with you and review your individual financial and family circumstances;
- We listen to what you want to achieve; and
- We use our expertise and experience to create a Will that achieves your desired outcome.
Frequently Asked Questions
What happens if I have estranged family members?
If a member of your immediate family has been estranged from you for some time, careful consideration needs to be given when creating a Will. If a family member who has been a dependant of yours has been left out of your Will, that person may have a right to challenge your Will in Court in certain circumstances. A carefully prepared Will might just save the people you leave behind a significant amount of grief and legal expense.
In cases where there are no surviving spouses or children, the deceased’s parents, along with other relatives, may be entitled to inherit from the estate according to intestacy rules.
How will my young children be taken care of?
A Will can specify who the guardian of your children under 18 will be in the event of your death. Nominating a guardian in your Will can reduce the conflict between family members about who will care for your children after you die. If a dispute does arise, it is the family law courts who determine where children reside and who makes decisions about them. In the event of a dispute, the nomination of a guardian in your Will shows what your intention was.
The law provides that your children cannot take control of their share of your estate until they are 18 years of age. You can specify in your Will who will manage the benefits being left to your children until they reach the age you nominate for them to receive the benefit.
Your Will can stipulate how old you want your children to be when they receive their share of your estate. If no age is specified, children are entitled to receive their share at 18 years old. Many parents want their children to be older before they receive some or all of their share. Commonly the ages of 21 or 25 are specified. Knowledge of the law is important to ensure that your children do not receive what you have left for them early if you specify an age older than 18 years.
Our Wills and Estate Planning Lawyers can talk you through the key issues that emerge when selecting guardians and deciding the age your children will take control of what you leave for them, ensuring you can make an informed decision.
What if my child or a beneficiary has a disability?
If you have a beneficiary who has a severe disability, one of the options you should consider is whether a Special Disability Trust or a Protective Trust should be utilised when making your Will.
A Special Disability Trust allows you to provide for your child or beneficiary who has a disability in a way that does not impact their entitlement to receive a government disability pension (subject to the value of the trust, which is revised annually). A Special Disability Trust is used to provide particular benefits to the beneficiary, such as accommodation and health care. Discretionary expenditure from the trust needs to be compliant with the legislative requirements.
A Protective Trust allows you to provide financial protection for your child or beneficiary (the vulnerable beneficiary) by giving power over the income and capital of the trust to a Trustee who uses it to benefit your beneficiary for the purposes specified in your Will. A Protective Trust is not subject to the constraints of a Special Disability Trust, and so can be used to provide for broader purposes than a Special Disability Trust. Those broader purposes can include providing for the beneficiary‘s recreation, holidays, entertainment and many other things. A Protective Trust is not suitable when a priority is to preserve the beneficiary‘s entitlement to a government pension.
Another option is to use a Testamentary Trust.
How can I protect the benefit being left to a child or a beneficiary from estate disputes?
If you have a beneficiary who has an addiction such as to alcohol, drugs, or gambling, how they receive any gift being left to them under your Will requires careful planning. For example, it would not be desirable for an alcoholic to receive a significant amount of money from a deceased estate as that could have dire consequences on their health.
A Protective Trust allows you to provide financial protection for your child or beneficiary (the vulnerable beneficiary) by giving power over the income and capital of the trust to a Trustee who uses it to benefit your beneficiary for the purposes specified in your Will, such as recreation, holidays, entertainment and many other things. A Protective Trust is not suitable when a priority is to preserve the beneficiary‘s entitlement to a government pension.
Using a Protective Trust prevents your beneficiary from receiving the benefit you are providing for them in one lump sum upon your death.
Another option is to use a Testamentary Trust.
What should I include in my Will?
Your Will should appoint an executor, set out who the beneficiaries of your assets are, including any specific assets, nominate a guardian of any minor children and include any specific instructions or wishes you have. Some people like to specify arrangements for a funeral and burial or cremation.
It is also crucial to consider your superannuation fund in your estate planning, as superannuation is not typically addressed in a Will. Preparing a binding death benefit nomination ensures that your superannuation will go to your intended beneficiaries.
Can I include digital assets in my Will?
Yes, you can include digital assets in your Will however the lack of legislative framework about digital assets can make the gifting of digital assets complex. Digital assets that you own and can be transferred can be gifted by your will.
For digital assets that are not owned, you may be able to specify how they should be managed after your death.
What happens to my debts when I pass away?
Your debts do not automatically disappear upon your death. They are typically paid from money or property left in your estate. It is your Executor‘s responsibility to make payment of the debts from the assets of your estate. What happens can vary depending on whether the debt was secured or unsecured and whether you were solely or jointly responsible for it.
If your debts exceed your assets, your estate may be insolvent. Any Executor must get proper legal advice before acting if there is any possibility that the estate may be insolvent. Neither your Executor nor your beneficiaries are personally responsible for paying your debts.
In some circumstances, particular assets are protected from application to the debts of your estate.
Do I need to inform my family about my Will?
While you’re not legally obligated to inform your family about the contents of your Will, it’s often a good idea to discuss your wishes with your loved ones to avoid surprises and potential disputes later.
It is important to be aware of the strict time limits when contesting a Will or making a family provision claim. Acting promptly is crucial to avoid missing these critical deadlines, as courts may only allow late claims in limited circumstances after the death of the individual.
It is a good idea to at least tell your family that you have made a Will and about where it can be located upon your death.
How should I store my will?
Your Will mustn’t be marked in any way after it is made. It is also important that the original Will can be located upon your death. We offer free and secure storage of your Will (and other estate planning documents) in our safe custody facility.