Wills and Estates

Making Your Will is a Phone Call Away

If you are over 18 years old in Queensland and do not have a will, your assets will be distributed in accordance with the law of intestacy, which may not be in line with your wishes.

The benefits include (but are not limited to):

  • Your loved ones know your wishes reducing burden and stress of interpretation
  • You reduce the chance of a dispute over your estate
  • You save costs and time on distribution of your estate, allowing more for your loved ones

You have the choice to do something and do it well by updating or making your Will with Sinnamon Lawyers, particularly when you experience a change in:

  • Finances (including receiving compensation from an accident or experiencing financial hardship)
  • Relationship (including marriage, divorce, or separation, including de-facto or registered relationships); and/or
  • Family status (including having children, stepchildren or adoption)

Make Your Enduring or General Power of Attorney

A will is a document that comes into effect once you passed. An Enduring Power Attorney comes into effect while you’re still alive but have lost the capacity to make financial and/or personal/health decisions.

In some ways, nominating a Power of Attorney is more important than a Will.

We never know what is around the corner. A loss of capacity could happen at any time through accident, injury, illness, age or otherwise in a person’s life and this loss may be temporary or permanent.

A General Power of Attorney is limited to financial matters for a period of time or an event and ceases to take effect when you lose capacity.

An Enduring Power of Attorney takes effect after you lose capacity.

If one day you lose capacity, you need someone you can trust to make your financial and/or personal/health decisions for you.

A financial attorney can perform a range of duties including:

  • Pay your bills
  • Prepare your tax returns
  • Manage your business or investments

A personal/health attorney can decide:

  • Health and medical decisions, including treatment options and medicine
  • Where you live and with whom
  • Your day-to-day care, needs and recreational activities

An appointed attorney is accountable for their actions.

You have opportunity nominate more than one attorney to manage your affairs, specify what powers they have and when your Attorney’s powers begin in your Power of Attorney.

You can also revoke your Power of Attorney at any time as long as you have the capacity to do so.

Sinnamon Lawyers can make or revoke your Powers of Attorney for a competitive fee.

Contest a Will – Family Provision Application

You can contest a will in Queensland if there are good reasons based upon several factors.

People eligible to contest a will include a:

  • Spouse (including married, de-facto or registered relationship)
  • Child (including natural, adopted or stepchildren)
  • Dependent (means a person wholly or substantially maintained or supported financially or otherwise by the deceased at the time of their death)

Dependant could mean:

  • A parent of the deceased;
  • The parent of the surviving child under 18 years; or
  • A child under 18 years and/or under a legal disability

Due to strict time limitations, it’s important you act quickly.

The executor must be notified of a person’s intention to bring a claim within 6 months from the date of death.

Court proceedings must then commence within 9 months from the date of death.

If you believe:

  • The Will was grossly unfair
  • The deceased was forced or influenced into making the will
  • The financial needs of family members weren’t considered in the will
  • The deceased did not have a capacity to understand the will they were making

 

FAQs About Wills & Estates

A Will is a legal document that sets out your wishes for the distribution of your assets after your death.

Everyone over the age of 18 years old should hold a will, regardless of what they own. Although you are not required by law to have a Will, having a Will is the best way to ensure that your assets are protected and distributed according to your wishes.

If you do not make a Will before your death, no one knows who you wished to be beneficiaries of your assets or who you wanted as your executor. If you do not have a Will, your assets will be distributed according to the Succession Act 1981. This means certain relatives will receive a defined percentage of your assets, regardless of what your wishes may have been.

There are many ways to make a Will, such as buying an online Will kit and writing your own. The best way to be sure your Will is legitimate is to visit a lawyer and create a Will together. Contact Sinnamon Lawyers today to make your Will.

Your Will should include a full list of your executor(s), your chosen beneficiary(ies), appointed guardians for any children in your care under the age of 18 years, and any gifts or heirlooms you wish to specifically gift in your Will. You can also stipulate your funeral directions, stipulate trust accounts for inheritance and express your wishes. In giving your instructions while making your Will,  you will also need to specify the following:

  • The name of your executor
  • Asset details and approximate amounts
  • Clear instructions on how you want your assets to be divided
  • Accurate contact details of those who will be left with your assets and what should be done if one of those people die before you
  • Instructions regarding funeral arrangements
  • The name of a guardian to care for young children

If you have any questions about what to put in a Will, contact us today.

If you are unsure of when to make a Will, a general rule is when something significant in your life changes, this could be:

  • When you get married or enter a civil partnership or de-facto relationship
  • When you separate, divorce, or end a civil partnership or de-facto relationship
  • Children or grandchildren are born or adopted
  • Your nominated executor or beneficiary pass away
  • Your financial circumstances significantly change

If any of the above has happened to you and wish to change your will or make a will for the first time, contact us today.

Changing your Will is not as simple as one might think. Once a Will has been signed and witnessed, it cannot be amended otherwise it may be deemed invalid. If you need to update your Will, contact us today.

Once you are happy with the contents of your Will and have signed it, you should let your executors know that they have been chosen. It is best practice to let your executor know that you will be listing them as your executor to your Will before legally listing them. It is also recommended you make sure the executor(s) or the beneficiaries know where to find your Will. If your Will cannot be found at the time of your death, your assets may not be distributed according to your wishes.

An executor of a Will is a person (including more than 1 person, a company or organisation) you have chosen to oversee the distribution of your assets. The executor must be over the age of 18, someone you trust to carry out your wishes under the will.

 

The executor of your Will is responsible for administering your estate according to law. The duties imposed on your Executor by the law can be difficult, demanding and time-consuming, particularly in the period of grief following your death. If you appoint an Executor who does not have the necessary skills or who is unable or unwilling to act, or if conflict arises between your Executor and your beneficiaries, this could result in delays and additional costs being incurred in the administration

of your estate.

 

An executor may be responsible for:

  • Locating and examining the will
  • Locating and notifying all beneficiaries
  • Obtaining a grant of probate from the Supreme Court to prove the Will
  • Distributing your assets, including:
    • Bank accounts
    • Real estate
    • Share portfolios or managed funds
    • Life insurance
    • Superannuation
    • Cars/boats
    • Jewellery/antiques/heirlooms and other items of significant value such as precious metals etc.
  • Valuing the assets
  • Safeguarding and insuring all property and assets that form part of the Estate
  • Organising for your burial or cremation and funeral requests
  • Collecting all debts owing to you, including all valuables and income
  • Paying all debts you may owe
  • Obtaining valuations of the Estate
  • Organising all income tax returns to be completed and tax paid
  • Maintaining financial records for income earned by the Estate and any ongoing expenses

 

It is important that you nominate people you trust implicitly to act in these positions. This can include family, close friends, accountants, financial advisers, lawyers, or The Public Trustee of Queensland. Consider the age of those you are appointing and make them aware of your expectations in advance so that they can give effect to your wishes.

 

The role will require legal and taxation assistance so nominating persons with relevant skills or, the ability to obtain assistance with the administration of your estate or management of trusts created under your Will is extremely important.

Yes. It is common for Wills to include two executors, in case the nominated executor is unwilling, unable, or dies before you.

A trust is a legal entity that can “own” assets. It is a document that include instructions for whom you want to handle your final affairs and whom you want to receive your assets are your passing.

There are three types of trustees to a Will: a trustee, a successor trustee and an advisory Trustee.

 

Trustee

If you have been named as the trustee, you may already be acting in that capacity. A trustee manages the assets that are in the trust and are often managed by the trustee that specified the trust. The trustee may continue to manage their affairs for as long as they are able to. Married couples, civil partnerships or de-facto couples are often co-trustees so when one dies or becomes incapacitated, the other partner can continue to handle their finances with no other actions.

 

Successor Trustee

If you’ve been labelled as a successor trustee, you don’t have to do anything until the person you are a trust to becomes unable to manage their financial affairs due to incapacity or when they die. Often, several names are listed as successor trustees in the case where one or more cannot act. Sometimes, a corporate trustee may be named.

 

Advisory Trustee

In the administration as trustee of any estate an advisory trustee may be appointed to assist and advised the trustee appointed under the Will. An advisory trustee may be appointed for all trust property by:

  • The testator (the person who wrote the will)
  • The creator of the trust (e.g. the Executor)
  • By Order of the Court made on application of any beneficiary or trustee

Trustees and executors may be the same people (including more than 1 person, company or organisation) but they have very different roles.

A beneficiary of a Will is any person that has been listed on a Will to receive a defined portion of the deceased person’s assets. In the case where the person who has listed you as a beneficiary of their Will has passed, you will be contacted by the executor of the Will.

 

As a beneficiary of a Will you are entitled to:

  • Be notified whether a valid Will was left
  • Your exact entitlement from the estate, as laid out in the Will
  • Receive entitlements within 12 months of the deceased’s death

 

You are not entitled to:

  • Make funeral arrangement for the deceased

Wills can be contested, although there are specific time limits to do so in each State or Territory. A Will may be contested by a spouse (including de-facto partner, civil partner), a child (including step-child or adopted child), or financial dependent (e.g. a person under your financial care, including a parent). A Will can usually only be contested if it can be shown you had an obligation to provide for them. If you are unsure about contesting a Will, contact us today for personalised advice.

A power of attorney is a document that authorises another person to make personal, health and/or financial decisions on your behalf. There are two types of power of attorneys: general power of attorney and enduring power of attorney.

 

In some ways, a power of attorney is more important than making a Will as it takes affect while you are still alive.

You may use a general power of attorney to appoint someone to make financial decisions on your behalf for a specified period or event. For example, when you travel overseas, and you require someone to sell your house or pay your bills. General power of attorney is only used while you are still able to make your own decisions and ends as soon as you no longer can do this (i.e. when you lose capacity).

An enduring power of attorney is used to appoint someone to make personal, health and/or financial decisions on your behalf. The enduring power of attorney usually only takes effect when you have been declared by a medical practitioner by way of medical certificate that you no longer have the capacity to make these decisions. If the enduring power of attorney is ordered to make personal decisions for you, this can only commence when you lose the capacity to make those decisions for yourself (for example, following a serious injury, a chronic disease or death). If you do not have a person who can act for you in this capacity, you can apply to Office of the Public Guardian body to be appointed should this happen. The OPG must consent to be appointed in circumstances when there is no family, friend or other person whom can make these decisions on your behalf.

 

For making financial decisions on your behalf, you can nominate when you would like the attorney to being making those decisions for you. These could be straight away or at some later date or occasion (most commonly once you’ve lost the capacity to do so yourself). The Public Trustee of Queensland can act on your behalf to administer your financial matters.

Contact Sinnamon Lawyers Today

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