THE BASICS

  • A Will is a written document which:
  • takes effect upon death
  • appoints an executor (the decision maker and person charged with carrying out your wishes)
  • appoints guardians for infant children
  • details your wishes for the distribution of your estate to your beneficiaries
  • deals with the assets in your estate as at the date of death
  • Each person needs their own Will
  • In Australia – each State and Territory has jurisdiction over Wills and estates. There is no uniform approach
  • In Queensland, Wills are generally revoked upon marriage, unless the marriage was contemplated in the Will
  • There’s more than one type of Will! It’s not a “one size fits all” kind of document

INTESTACY

  • Means dying without a Will OR you have a Will which is not valid
  • It is estimated that almost half of all Australians die without a Will!
  • Distribution of an intestate estate is governed by the relevant law of the State/Territory. For most people, the intestacy laws do not result in a distribution which you would have intended or wanted for your loved ones

PROBATE / LETTERS OF ADMINISTRATION

  • Where there is a Will, the executors may apply to the Supreme Court for a Grant of Probate
  • It is simply a document issued by the Court which provides formal recognition that a Will is valid, and that the named executor/s have authority to administer the deceased estate
  • Generally required for estates over a certain monetary value or where it is otherwise advisable to obtain (e.g. possible contest to Will), but an estate can be administered without it
  • Offers greater protection to the executor/s
  • Formal application to Supreme Court to be appointed as an administrator of a deceased estate
  • Required where there is no Will, or where there is a Will which results in intestacy or no available executor/s
  • “Pecking order” of applicants applies
  • This is the number 1 excuse we hear for why people don’t have a Will
  • A Will isn’t necessarily about what you own and who should get what. It’s also about ensuring your loved ones/next of kin have the legal ability to deal with your estate
  • All estates require administration, no matter the size
  • Superannuation entitlements (particularly a death benefit attached to your superannuation) can amount to thousands of dollars payable to your estate
  • Circumstances of death may mean substantial insurance payouts will form part of your estate
  • Will is simply “out of date” – it may have been years or even decades since it was last reviewed
  • Births, deaths, marriage, divorce, new relationship, new business – these life events may all have an impact on your Will and how your estate should be distributed
  • Poorly drafted – key information is missing, a beneficiary may have been inadvertently excluded, or there is a failure to deal with the “whole of the estate”, resulting in a partial intestacy
  • Will is invalid – In Qld we have strict requirements for the making of a Will, how it is witnessed and by whom. Failure to comply may result a Will being found to be invalid = intestacy OR earlier Will prevails
  • Cheap, but often nasty!
  • Testators often fail to complete properly or have the document witnessed incorrectly (or not at all)
  • No opportunity for a testator’s instructions to be interpreted and, if necessary, re-drafted appropriately
  • Generally there is no third party record of your intentions
  • Where not completed properly, a Will kit causes substantially more cost to administer your estate
  • Just as important as a Will, if not more so – life is uncertain and we don’t know what the future holds
  • An EPOA:
    • is a document in which you appoint an “attorney” to legally act on your behalf for your financial, personal and health matters
    • allows your attorney/s to act on your behalf should you suffer a loss of capacity or as you otherwise instruct
    • can be structured to suit an individual’s needs
    • only operates during your lifetime – ends immediately upon death
  • Chose attorneys who you trust, who know you and are financially astute!
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Central Queensland Conveyancing Centre | Conveyancing Mackay

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Welcome to Central Queensland Conveyancing Centre! We look forward to discussing your family law matter. Please book a FREE 20-Minute Appointment to get started.
Welcome to Central Queensland Conveyancing Centre! We look forward to discussing your family law matter. Please book a FREE 20-Minute Appointment to get started. Book A Free Consultation