elderly man reclining in a chair with friends and family

Why do I need a Will?

Whilst a Will is probably one of the most important documents that a person will ever sign, current statistics show that almost one in two Australians do not have a Will or if they have a Will, it is invalid.

If someone was to die and either does not have a Will, or leaves a Will which is invalid then it means that person has died “intestate”.  When this occurs, the Rules of Intestacy as contained in the Succession Act 1981 (Qld) determine how the deceased’s estate assets will be distributed.  This includes real assets, bank accounts, shareholdings and other assets that the deceased owned at the date of their death.

How is an intestate estate distributed?

  • Married with no children

If the deceased was married with no children then the whole estate is given to the surviving spouse.

  • Married with children

If the deceased was married with children and a surviving spouse then:

    • if the value of the estate is less than $150,000.00 excluding household chattels, then the whole estate is given to the surviving spouse; or
    • if the value exceeds $150,000.00 excluding household chattels, then the surviving spouse is given household chattels, $150,000.00; and
      • if there is only one child then one half (1/2) of the remainder of the deceased’s estate; or
      • if there are two or more children then one third (1/3) of the remainder of the estate; and
    • the children receive the remainder of the estate.
  • No surviving spouse or single with children

If there is no surviving spouse or the deceased is single with children at the date of death then the surviving children take the whole estate of the deceased in equal shares.

  • Single with no children

If the deceased was single with no children then the deceased’s parents stand to inherit the entirety of the deceased’s estate should they survive the deceased.  If the deceased’s parents predecease the deceased then the deceased’s siblings will inherit the entire estate in equal parts.

Ensure your wishes are clear

If a person dies without a Will, it is unlikely that their estate will be distributed in line with their exact wishes.  Therefore, having a valid Will is one of the most important things that a person can do for themselves and their family.

If you would like more information about estate planning and what estate planning documents are, including Wills, Powers of Attorney, Advance Health Directives and more, please go to our Wills & Estate Planning section or contact one of our team today.

If you would like further information and assistance with the preparation of your Will, contact one of our local experts today.

(07) 4963 2000
ONLINE ENQUIRY
Catherine Da Silva, Solicitor, Wallace & Wallace Lawyers Mackay

Catherine Da Silva
Solicitor
Business & Property

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Three pairs of concentric hands with gold coins

Do I really need a Binding
Death Benefit Nomination?

It is common for people to think that they don’t have many assets and, therefore, do not need estate planning advice when actually the superannuation benefit payable on their death is often a substantial amount and is their most significant asset.

Many people do not realise that some assets, such as superannuation, life insurance and jointly held assets (usually the family home), will not automatically fall into their estate when they pass away.  As superannuation is not an estate asset, on a person’s death their superannuation benefit does not automatically flow to their estate.  Generally, the trustee of the superannuation fund will pay a superannuation benefit in accordance with the governing rules of the fund and relevant legislation at the time of death.

Who is entitled to claim your superannuation benefit?

In the event that you have not prepared a valid Binding Death Benefit Nomination then your spouse, children and anyone else classed as your dependent are able to make a claim for your superannuation benefit.

For the purpose of superannuation laws:

  • a “dependent” includes:
    • a spouse (including a defacto partner);
    • children under the age of eighteen (18);
    • any person financially dependent on you; and
    • a legal personal representative.
  • a “spouse” includes anyone living with you as a defacto partner at the time of your death regardless of the period.

A way to override the trustee’s discretion is to prepare a valid Binding Death Benefit Nomination.  This will ensure that your superannuation benefits are received by your intended beneficiary or beneficiaries.

Binding Death Benefit Nominations

If you wish to ensure that your superannuation benefit will be paid in accordance with your wishes then you will need to have in place a valid Binding Death Benefit Nomination at the time of your death.

A Binding Death Benefit Nomination is a legally binding nomination that allows you to advise the trustee of your superannuation fund who is to receive your superannuation benefit in the event of your death.  However, in order for it to be binding it must be valid (properly completed and witnessed).  It is also important to note that Binding Death Benefit Nominations will usually lapse every three years and need to be renewed.  Therefore, if you have previously prepared a Binding Death Benefit Nomination, however, it has lapsed the decision as to who receives your superannuation benefit will revert to the trustee of your superannuation fund.

A properly prepared estate plan is essential to ensure that your assets are distributed in accordance with your wishes.  If you would like further information and assistance to undertake estate planning including preparation of a valid Binding Death Benefit Nomination, please do not hesitate to contact one of our local experts today on 4963 2000 or via our online contact form.

Catherine Da Silva, Solicitor, Wallace & Wallace Lawyers Mackay

Catherine Da Silva
Solicitor
Business & Property

Other Articles

Why do I need a Will?

Having a valid Will is one of the most important things that a person can do for themselves and their family. Don’t leave the distribution of your estate to chance.

Family Provision Application

A Family Provision Application can be made to the court to set aside or vary a Will, so that adequate provision may be made for an eligible person.

Estate Administration
an Executor’s Responsibilities

If you are an executor to a Will, it is important to remember that you must act in the best interests of the estate and the beneficiaries at all times.

Read More
women and man sitting on couch discussing will

Family Provision Application

In Queensland, there are a number of ways in which you can dispute a Will. Such circumstances may include where the testator lacks capacity at the time the Will was made, where the testator’s Will has been overborne by undue influence, or where the testator has failed to make adequate provision for someone.

The latter is known as a Family Provision Application, and it is one of the more common ways to challenge a Will in Queensland. Essentially, it is an application made to the court to set aside or vary a Will, so that adequate provision may be made for an eligible person. An “eligible person” for the purposes of a Family Provision Application includes:

  1. spouses (including de facto spouses);
  2. children (including non-biological children, i.e., step-children); or
  3. dependents.

For the purposes of a Family Provision Application, the Succession Act 1981 (Qld) (“the Act”) provides that a dependent is someone who is “wholly or substantially maintained or supported by the deceased person”. That person must also be a parent or a parent of a child of the deceased, or a child under the age of 18 years.

In order to successfully make a Family Provision Application, it is not enough to merely show that you are an “eligible person”. Pursuant to the Act, an applicant under a Family Provision Application must also establish that the testator has failed to make “adequate provision” for their “proper maintenance and support”.

Of course, what counts as “adequate provision” will vary on a case by case basis. In making a determination, the Court must make a subjective assessment of the facts. That is, the Court has to take into account the circumstances of the various beneficiaries and the size of the estate. The Court will also take into consideration the relationship between the Applicant and the deceased, as well as the relationship between the deceased and any other beneficiaries. For example, the Court may be less likely to find in favour of an Applicant who has been estranged from the deceased for a number of years. Similarly, the Court is not likely to find in favour of an Applicant who is financially stable or independent, in circumstances where another beneficiary would be reliant on provision from the estate.

If you believe you have been unfairly left out of a family member’s estate, or otherwise wish to challenge or dispute a will, you should contact one of our local, expert team for advice on 07 4963 2000 or via our online contact form.

Dannielle Woodward, Solicitor, Wallace & Wallace Lawyers Mackay

Dannielle Woodward
Solicitor
Litigation & Dispute Resolution

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Elderly lady signing Will with younger women

Estate Administration
an Executor’s Responsibilities

When a person creates a Will, they appoint an executor to administer their estate upon their death.

What is an executor responsible for?

The executor is responsible for ensuring that all outstanding debts and taxes are paid and that the remaining assets are distributed according to the deceased’s final wishes as set out in their Will.

This is a position of great trust and must be carried out with care and integrity. If you have been named as an executor to a Will, it is important to remember that you must act in the best interests of the estate and the beneficiaries at all times.

What if there is a conflict between the beneficiaries?

If a conflict arises between beneficiaries, you cannot take sides but should instead try to mediate a resolution. The best way to avoid or minimise conflict is to maintain clear and regular communication with all beneficiaries about what is happening with the estate.

Further, where you are one of a number of executors, you must consult with the other executors and agree on a proposed course of action before taking any steps to administer the estate.

As an executor you must make sure that all liabilities of the estate are satisfied, and that the remaining assets of the estate are properly managed and protected until they can be distributed to the beneficiaries.

What duties might an executor need to perform?

Your duties as an executor may include:

  • protecting and auditing the deceased’s assets;
  • obtaining valuations for those assets;
  • confirming that all assets are appropriately insured;
  • applying to the Supreme Court for a grant of probate (if necessary);
  • finding and notifying the beneficiaries of their entitlements under the Will;
  • transferring or selling assets (where appropriate)
  • where assets are not able to be transferred or sold, maintaining those assets;
  • determining all debts and liabilities of the deceased;
  • paying any debts of the deceased (including debts incurred during the course of the administration of the estate);
  • defending the Will of the deceased where litigation is commenced against the estate;
  • preparing tax returns and obtaining income tax clearances;
  • maintaining a statement of assets and liabilities to be provided to beneficiaries upon request and at the conclusion of the administration of the estate; and
  • distributing the estate to the beneficiaries in accordance with the Will, only once satisfied that there is no likelihood of a claim being made for a share of the estate.

You may be surprised to learn that if there is an error in administering the estate, whether it is deliberate or accidental, you may be held personally responsible for any financial losses to the estate.

It is therefore vitally important to ensure that you properly perform all of your duties as an executor.

If you would like assistance with administering an estate
contact one of our expert lawyers

(07) 4963 2000
ONLINE ENQUIRY
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Family Estate Planning documentation on a desk with calculator and glasses

Estate Planning – The importance
of a properly drafted Will

Your Will is one of the most important documents you will ever sign, and it must be properly drafted to ensure that the assets you have spent a lifetime collecting are left according to your wishes.

You may be surprised to learn that some of your assets, such as your superannuation, life insurance and your share of any jointly held assets (usually the family home), will not automatically fall into your estate when you pass away. Further, any assets which you control through family companies or trusts, but do not actually own, cannot be disposed of through your Will as part of your estate.

A well formulated estate plan is required to ensure that these assets benefit the people you choose, and in the most tax effective manner.

Including a testamentary discretionary trust in your Will is an example of such an estate plan. These discretionary trusts come into existence upon your death and can have significant benefits, including protecting the beneficiaries who receive your assets in the event they:

  • get into financial difficulties with creditors; and/or
  • are declared bankrupt; and/or
  • suffer a breakdown of their matrimonial relationships.

Further, income distributed from testamentary trusts to minors is taxed at the marginal rate. The special tax treatment received by these trusts can result in thousands of dollars in tax being saved annually upon the death of someone with a young family.

A properly prepared estate plan will take into account legal, taxation and financial issues. It is therefore important that you involve your solicitor, accountant and financial advisor in a coordinated approach to establishing and, from time to time, reviewing your estate plan.

If you would like assistance with the preparation of your estate plan, please do not hesitate to contact our office on (07) 4963 2000 or via our online contact form.

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Last Will & Testament

Court Made Will – overcoming a
lack of testamentary capacity

In order for a person’s Will to be a valid and binding document in Australia, that person (the Testator) must have ‘testamentary capacity’ at the time at which the Will was created.

What is testamentary capacity?

This means that the Testator must not be affected by any disorder of the mind and must understand:​

  • the nature and effect of the Will;
  • what their estate is; and
  • the claims which the Testator might have upon their estate.

For example, an individual with advanced dementia or severe mental disabilities will be unlikely to have the requisite testamentary capacity to make a valid Will.

The Court may create a Will on behalf of a person without testamentary capacity

This was the case for a 13 year old boy in New South Wales who had been left severely disabled after being deprived of oxygen at birth due to the negligence of hospital staff.

This young boy (known as “N”) required an urgent and risky operation on his lungs, and there was a high chance he would not survive the procedure.

Without the requisite testamentary capacity N was incapable of making a valid Will to provide for the distribution of his estate in the event of his death.

For most 13 year old children this would be a non-issue, for two reasons there would be nothing to distribute and, even if there was, the laws of intestacy would result in the child’s next of kin (most likely their parents) automatically inheriting the estate in equal shares upon death.

However, this matter was unique in that N’s estate was worth millions of dollars due to a settlement payment received from the hospital responsible for mishandling N’s birth and causing his disability.  Further, N’s parents were separated.  More importantly, it was argued that N’s father had left N’s mother years earlier to care for N alone.

The issue was brought before the NSW Supreme Court for Justice Robb to determine whether the Court could make a Will for N and, if so, what N’s wishes were likely to be if he was able to express them for himself.

The relevant legislation, in both New South Wales and Queensland, provides that the Court may create a Will on behalf of a person without testamentary capacity.  Justice Robb therefore had no difficulty finding that the Court had the power to make a Will for N.  Although this matter is clearly a rare case, it is also an example of the extensive powers granted to the Court under the Succession Act.

Ultimately the Court determined that N’s estate be split three ways: 42.5% to his mother, 15% to his father and the remaining 42.5% to be split equally amongst N’s six siblings.

Please don’t hesitate to contact us should we
be able to be of assistance to you in any regard.

(07) 4963 2000
ONLINE ENQUIRY
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