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Wills and estate planning Articles

Joint Ownership of Property

In our experience, many clients can tell us that they hold their property ‘jointly’ with another. However, unless they were made aware of their choice of holding as ‘joint tenants’ or ‘tenants in common’ in spec...

Digital Assets

In today’s world not only do we have traditional and tangible assets, like motor vehicles, bank accounts, land and investments, but many people also have ‘digital assets’ (DA’s). Deciding how you want your DA’s distri...

I'm incapacitated - who makes my health decisions for me now?

How can I make sure what I want is heard ?? - Your care – Your choices! In Queensland, if we are unable to make or communicate our own health care decisions, the legal order of priority for substitute decision making is: (1) an advance heal...

You think you own your dead body, Think again

When we die it is the person/s with the right to administer our estate (the executor nominated in our Will or the administrator of our estate if we die without a Will – intestate) who decide what happens with our bodies - unless we have made ...

Binding Financial Agreements as an Estate Planning tool

A Binding Financial Agreement (BFA) is an effective tool for couples in managing their estate planning. BFA’s allow couples to pre-determine what they quantify as a fair distribution of their finances and assets, in the event of a relationshi...

The role and responsibilities of a trustee in Queensland

A trust is a set of obligations whereby property may be legally held by a trustee for the benefit of others. It separates the beneficial and legal ownership of property. The parties to a trust are the settlor (person creating the trust), the trust...

Dying intestate - the perils of not making a Will

A valid Will determines how your estate is dealt with after you die. Your Will can appoint an appropriate family member or trusted friend to administer your estate (your executor), nominate guardians for young children, determine who will receive y...

Binding Death Benefit Nominations

Superannuation in Australia is governed by the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) and Income Tax Assessment Act 1997 (Cth) (ITAA). Superannuation is a tax-effective way to save and invest for your future. The SIS Act pr...

Superannuation Death Benefit Claims

Duty of Estate Administrator vs Their Role as Your Dependants Who Wins? An executor of a will, or an administrator of an intestate estate (where a person dies without leaving a valid will), has a duty to act in the best interests of the beneficia...

Wills & Mental Capacity

The question of mental capacity is an important consideration in will-making and can be a contentious issue. How often do we hear family members arguing over a loved-one’s ‘state-of-mind’ and ‘what Grandad would have wanted&...

Accessing Digital Assets

The untimely death (or purported death) of Gerald Cotton, former CEO of Canadian cryptocurrency exchange company, Quadriga CX, emphasises the importance of planning your electronic after-life. Mr Cotton’s death in India at the age of 30, not...

What happens when a person dies Insolvent

Insolvency in estate matters occurs when the deceased person’s estate is unable to meet its debts when they become payable and the estate assets are insufficient to meet its liabilities. These estates are administered differently to solvent ...

Special Disability Trust

- What is a Special Disability Trust? Understandably, parents and family members who care for a severely disabled family member are seriously concerned as to how to best provide for the family member after their death. Naturally such planning is ...

Power of Attorney Abuse

A Power of Attorney is a legal document authorising a person (or more than one person, either jointly or separately) to act for you and make binding decisions on your behalf. A Power of Attorney is usually prepared: to facilitate and compl...

‘Secret’ relationships, and not having a Will

Disputes over a deceased’s estate are complex, emotionally draining and may risk depleting assets that would otherwise be available for distribution to beneficiaries. This is why having a valid Will and a Binding Death Benefit Nomination (BDB...

What personal effects could mean in your Will

What’s in a word, or a phrase? Potentially, a Mercedes motor vehicle according to the NSW Supreme Court decision in Lowe v Lowe. It is not uncommon for a Will to contain provisions such as, ‘I give my personal effects to Bob, Ted and A...

The problem with estrangement in a Will contest

All jurisdictions in Australia provide statutory rights for eligible persons to contest a Will, or a proposed distribution of an intestate estate, on the basis that they have not been left adequate provision by the testator. An eligible person gen...

Monetary gifts to your child and estate planning

Parents are always looking for ways to assist their children, whether it be for house deposits, education or other life expenses, but have you thought about how this will affect your current estate planning, such as the gifts you have left in your ...

Death and superannuation benefits

It is important to understand the interplay of the laws governing superannuation, tax and succession when planning your estate. Appreciating how these laws interact can help avoid some common pitfalls in estate planning and may have significant im...

Varying the terms of a Will after death

In Australia, a person is theoretically free to choose who should benefit from his or her estate. Testamentary freedom is a well-founded principle. This principle however may be subject to community expectations of moral obligations. Consequently,...

What a Will Kit doesn’t do

There are various ‘Will Kits’ available on-line – most are cheap or ‘free’ and all you need to do is download them and fill in the blanks. Many websites boast that you can prepare your Will ‘without spending hund...

Common misconceptions about estate planning

An estate plan involves more than signing a Will and leaving it in a safe place. An effective estate plan requires consideration of your assets and affairs as a whole, and ongoing review to ensure it continues to reflect your testamentary wishes a...

Marriage, divorce and your Will

About half of all Australians don’t have a valid Will. Of those who do, many put their Will away in the bottom drawer of their filing cabinet, or leave it with a solicitor, and never think of it again. But making a Will is not a once in a l...

Statutory Wills

Most people are not aware that it is possible to apply to the Queensland Supreme Court for the Court to make what is known as a 'statutory will' for someone who is unable themselves to make a will because of lack of capacity. As you would ...

A spouse or partner contesting a Will

All jurisdictions in Australia provide statutory rights for eligible persons to contest a Will on the basis that they have not been left adequate provision by the testator for their proper maintenance, education and advancement in life. In Queensl...

De facto relationships and Will contests

All jurisdictions in Australia have legislation permitting eligible persons to contest an 'unfair' Will if they can show that they have been left without adequate provision by the testator. In Queensland, an eligible person includes: a ...

What happens to your digital assets when you die?

Who can access them? As our personal and business lives become increasingly digitalised, it becomes even more important to consider how digital assets and digital wealth are protected and dealt with on our death, or disability. What will happen t...

Estate planning for blended families

Most of us appreciate the importance of making a Will and having an estate plan in place that sets out how we would like to provide for our loved ones when we die. If, like an increasing number of Australians, you belong to a blended family, there...

The process of obtaining probate

The word 'probate' simply means 'proof', and the issuing of a grant of probate by a Court ‘proves’ the Will of a deceased person and vests title to estate assets in the executor/s, allowing the executor/s to deal with th...

Why everyone needs a Power of Attorney

Most people over 18 years of age should seriously consider having a power of attorney in place. We hope you will never have the need for one, but it is a simple and inexpensive precaution, and all too often we encounter problems that could have be...

Dealing with an

In this article we consider dealing with an unfair will where one or more parties consider the distributions made to one or more beneficiaries (or someone being left out of a will entirely) to be unreasonable in the circumstances. There are many r...

What is an estate plan and why is it important?

An estate plan involves more than signing a Will and storing it in a ‘safe place’. Estate planning requires a holistic approach involving consideration of a person’s present circumstances and foreseeable future. A plan needs to ...

Contesting a will

The last thing a spouse, child or dependant might consider when mourning the loss of a loved one is whether adequate provision has been made for them in their loved one’s will or in the case of no will, whether adequate provision will be made...

Asset and wealth protection - testamentary trusts

For an increasing number of high net worth individuals with complex professional and personal affairs, the question of how best to approach long term estate planning and in particular, what is likely to be the best way to preserve wealth for the be...

Can de facto children claim against your estate?

Like many Australian children these days, Johnny was brought up in what is commonly referred to as ‘a blended family.’ His mother Jean met his stepfather Peter after each of them had been divorced from their previous spouses. Jean and...

Can your ex-defacto inherit under your will?

Once upon a time you were happily living together with your de facto partner. Roses were bought, dinners were cooked, finances were shared and wills were signed leaving all your assets to your partner (in the event of what you thought of as t...

Making a Will is important for blended families

Making a Will is important, particularly if you are part of a blended family (i.e a family in which one or both partners have a child or children from a previous relationship). Careful estate planning now should ensure that all of your intended ben...

FAQ’s on Estate Planning

While not many people are likely to nominate estate planning [aka thinking about how my assets will be dealt with when I die, or suffer impaired capacity] as being on their most wanted things to do list, this is something that should be on all ou...

Do you know when to update your Will?

Most people know that a valid Will determines how the assets they own personally are dealt with after they die. Wills generally provide for the appointment of a trusted executor/s and the leaving of legacies to chosen beneficiaries. They may also...

Why it’s a bad idea to write your own Will

It is relatively easy to find a free Will template on the internet and fairly cheap to buy a Will kit from a newsagent or online. There are also websites that have data collectors that take your information and create a Will for you, seemin...

Making a Will if capacity is in question

As everyone knows a Will is a legal document which sets out how a person wants their assets to be distributed once they die. If you are over the age of 18 you can make a Will - provided you have capacity. In general terms a person wil...

Enduring Powers of Attorney explained

Many people have heard of Powers of Attorney however most do not fully appreciate the extent of the power they confer, the benefits they deliver or the types of powers of attorney that exist. A power of attorney is a useful and powerful legal ...

Have you been left out of a Will

The loss of a family member is always a difficult time, but it can become even more distressing to learn that you have not been included in the Will. Generally, a person may leave their assets to whomever they wish. However, the law recognises...