Hi everyone and welcome to our webinar – The Essential Guide to Wills in Queensland.
This will be the first in a series of five webinars on succession law in Queensland,
in which we will also cover off on powers of attorney, estate administration, probate
and contesting a will.
Our presenter today is Alex Prior who is our succession law expert at Forge Legal.
Alex, why have you decided to do a series on succession law – and why are we starting
off with wills?
Thanks Kate.
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 – for instance, where the negligence of
another person causes an injury or where a marriage breaks down.
Some of us are lucky enough to pass through life without ever having to engage with these
areas of our legal system.
One area of law that each and every one of us must consider and engage with, however,
is that of Wills and Estates – in fact, to do so is to ensure that our hard-earned
assets, built up over the course of a lifetime are protected, and our loved ones are provided
for.
No matter who you are, at what stage of life you find yourself, or how wealthy or otherwise
you may be, if you live in Queensland, the following will apply:
1) You need a Will; 2) You need an Enduring Power of Attorney
and 3) At some stage, it is likely that you will
act as executor for a deceased estate.
Okay well we'll start off simple then.
What is a Will?
In very basic terms, a Will is a legal document which allows the Testator – that's you,
the person making the Will – to set out how you wish for your assets to be distributed
upon your death.
It is important to distinguish a Will from an Enduring Power of Attorney, which allows
you to appoint somebody to make decisions on your behalf while you are still alive.
The key point to remember is that a Will only comes into effect once you have passed away.
So does everybody need a will or are there certain circumstances where it won't be
necessary?
The too long didn't read answer to that question is yes!
Everybody needs a will!
There is nothing as simple and effective as a Will when it comes to protecting your assets
and your loved ones.
As an estate lawyer, I frequently come across situations where the absence of a Will results
in the assets of a deceased being distributed in a radically different way than the deceased
and their family would have contemplated.
This can mean either loved ones going without and having to radically re-evaluate their
lifestyles or the stress of a costly, bitter and lengthy family provision claim.
So if I haven't been diligent and put a will in place and I pass away
what happens?
If you die in Queensland without having a valid Will in place, the way in which your
assets will be distributed is determined by the Provisions of Intestacy.
This refers to a 'one-size-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, by definition the way in which
this 'one-size-fits-all' set of rules operates can often be very surprising to people
who are unware of it, and more sadly still, to their loved ones after they pass on.
For instance, most people instinctively believe that their surviving spouse would receive
the entirety of their estate.
Surprisingly, this is not the case.
In fact, a surviving spouse may receive as little as $150,000 plus one third of the remainder
of the estate.
In some circumstances, the intestacy provisions can see a deceased estate distributed to aunts
and uncles.
With respect to the many excellent aunts and uncles of Australia, this might not be where
most people expect their estates to end up going.
Worse still, there are situations where the entirety of a deceased estate may go to the
state government, in precedence to a good friend or carer for example.
I think it's fair to say that this idea would be horrifying to a good proportion of
Queenslanders!
Add to this the fact that the state government could amend the existing intestacy provisions
at any time by simple passage of legislation.
So I've often heard the word executor come up when we're talking about wills and estates
but I'm still not entirely sure what it means.
Could you explain this?
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 in' the assets
of the estate, pay out the estate's liabilities and distribute the remainder to the beneficiaries
in accordance with the Will.
The executor may also need to maintain and invest estate assets so as to preserve their
value, particularly in circumstances where the entitlement of a beneficiary does not
vest until a certain age is attained. Usually 18 or 21.
Given the nature of these responsibilities, it is imperative that only people who you
trust implicitly 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.
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 predeceases you.
Okay so I guess the other important question is, how can I choose to divide my estate?
Well you could give it all to me! But in all seriousness
The first thing to consider is probably whether you wish to give any specific
items or sums of money to any specific people – for instance, an engagement ring to a
relative or $10,000 to a close friend.
Not everyone chooses to make specific gifts under their Will, but they can be particularly
relevant in circumstances where an item may have special sentimental value to a certain
beneficiary.
The most important clause in any Will is the residuary clause.
This is the clause which specifies how the residuary of estate (that is, everything that
remains after the liabilities have been paid and any specific gifts have been made) is
to be divided.
This can incorporate a number of 'tiers', whereby the residuary can go to a certain
person (for instance, a spouse) if that person survives, or otherwise to another person or
class of persons (for instance, children or grandchildren).
At Forge Legal, we can draft residuary clauses such that the ongoing evolution of 'classes'
of persons such as children or grandchildren is taken into account.
That way, if a member of the class dies or a new member is born, there is no need to
make a new Will.
We can also incorporate trust provisions into a Will, such that 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.
That's great to know. Is there anything else that I can put in my will?
Definitely.
Aside from their principal function of specifying how assets are to be distributed, Wills often
contain statements as to the Testator's intentions in relation to a number of other
issues.
Often, parents will specify a person who they wish to act as guardian of their minor children
upon the passing of themselves and the other parent.
Another common addition are statements of wishes as to funeral, burial or cremation
arrangements.
These could be as simple as a statement that such matters should be determined by the executor
or go into detail around the conduct of the ceremony or the location of a memorial.
Whilst such statements are non-binding, they are a powerful expression of the Testator's
wishes and are often given serious weight and consideration.
Okay.
So it's pretty obvious that a will is important if I want to protect my assets and the people that I love
But how can I put a valid Will in place? Well the good news is 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.
The following are a non-exhaustive selection of examples:
1) Taking apart, hand-amending, marking, re-stapling or improperly binding the document;
2) Not complying properly with the requirements for the witnessing of the Will's execution
or using a beneficiary as a witness; and
3) Not having sufficient notes or documentation relating to the mental capacity of the Testator
at the time the Will was made.
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 dependants.
Wills are a big part of what we do, so we can immediately identify any risks which might
apply, and make sure those risks are mitigated against.
We make it easy, so just head to our online Will instruction form – we've got a copy
of the link on the screen for your now - submit the form, and we will contact you to arrange
an appointment to discuss your detailed wishes and circumstances, and arrange for your new
Will to be executed and your hard-earned wealth are protected.
That sounds pretty simple.
I think I might get mine done today so I have peace of mind for the future.
Thanks for the information Alex.
Thanks Kate – and remember to join us for the next instalment in this webinar series,
which will be all about another document which everyone should have - Powers of Attorney.
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