The reasons estates are challenged are as wide-ranging as families and relationships are diverse. Commonly estate disputes involve blended families (i.e. second spouse or step-children), children that haven’t had a relationship with their parent for some time and children who have problems managing money. This article explains some of the most common types of estate claims including family provision applications, challenges to the will be based on lack of capacity or challenges to the will based on undue influence. 1. Family provision application Family provi ..read more

When someone dies without a will they are said to have died ‘intestate’. In each jurisdiction in Australia, there are intestacy rules that stipulate how a person’s estate is to be divided if they die without a will. Here is a handy diagram showing how an estate would be distributed in accordance with the rules of intestacy in Queensland. When someone dies without a will, an administrator is granted Letters of Administration and is appointed to administer the estate. The role of an administrator is similar to an executor who someone would appoint in their will. The laws in Queensland stipulate ..read more

Choosing an executor is difficult and one of the most important decisions you will need to make when making a will. To put it simply, the role of an executor is to make funeral arrangements, obtain probate, collect in your assets, pay your debts and then distribute the estate to your beneficiaries. Sounds simple right? Sometimes but, as lawyers like to say, ‘it depends’. The role of an executor can be onerous, and an executor is expected to act quickly and fairly. Executors are also often required to assume other roles, for example, to act as director of a company, trustee of a family trust o ..read more

Superannuation death benefits can be substantial, and people often don’t realise that there is life insurance attached to their superannuation. When someone has not made a valid binding death benefit at the time of death, the superannuation fund decides how superannuation death benefits will be paid. They can decide to pay the death benefits either to the deceased person’s dependants or to their estate. To assist you in understanding who superannuation death benefit dependents are, we recommend you read our blog ‘What happens to superannuation when someone dies?’. When deciding which dependant ..read more

When a person dies, their superannuation does not automatically form part of their estate. Unless a person has nominated a beneficiary, then the superannuation fund can decide who to pay the superannuation death benefits to. Superannuation death benefits can only be paid to the person’s estate or dependants which includes: spouse (married or defacto) children (including adult children and step-children) a person in an interdependency relationship with the deceased financial dependant Superannuation funds have various types of death benefit nominations you can put in place, which include: No ..read more

In Queensland, for a will to meet the formal requirements of a valid will, the will must be in writing, signed by the will maker and the will maker’s signature must be witnessed by at least two witnesses. The Court has the power to declare a document that doesn’t meet the formal requirements to be a valid will. There have been various cases where documents such as will instructions, post-it notes, text messages, electronic documents and video recordings have been declared by the Court to be a will. Although these cases were successful, the outcome of cases of this kind may differ depending on ..read more

More than 50% of Australians don’t have a Will and more than half of those who do acknowledge it needs updating.    Estate Planning in Australia Final Report, Charles Sturt University and The University of Adelaide (2017) This article explains some of the common reasons people put off making a Will and addresses some misconceptions around Will making. I hope you find it useful and helps you jump over any hurdles that are stopping you from making a Will. I DON’T HAVE ENOUGH ASSETS While the gifting of assets is a major part of a Will, a Will also: Appoints an executor to handle yo ..read more

Probate is a document that is granted by the Supreme Court of Queensland to an executor. Executors appointed in a will can apply for probate to be granted to them. A grant of probate is the Court’s official recognition that the executor has a right to administer the estate in accordance with the will.  One of the first decisions you will need to make when commencing the administration of an estate is whether you need to obtain probate.  It may be necessary to obtain probate to deal with the deceased’s bank and property. Banks (and other asset holders) usually require proba ..read more