If you do not have a will, then the Intestacy Rules set out in legislation will determine how your estate is distributed. The Intestacy Rules may not follow your wishes. For example, many people assume everything will go to their spouse, but this is not the case if you have children.
Order of entitlement in the Intestacy Rules for Queensland (other States are similar):
Spouse
- Survived by spouse and 2 or more children – first $150,000 and household chattels, plus 1/3 of balance to spouse and 2/3 of balance to children
- Survived by spouse and 1 child– first $150,000 and household chattels, plus 1/2 of balance to spouse and 1/2 of balance to the child
- Survived by spouse no children – all to spouse
Not having a will not only means your wishes will not be carried out, but it may also increase the cost of your estate administration, cause significant time delays and be a burden to your family and friends.
2. Who needs a will?
Wills are not just for the rich or elderly. Anyone with a car, savings or sentimental items should have a will. It is estimated that only 48% of Australians have wills. Wills are necessary for anyone over the age of 18 years.
3. Who can challenge my will?
In Queensland, a married spouse, de facto spouse, children and a financial dependant can make a claim against a will if they believe they were not provided for adequately by the will. You are able to make a claim against a will for up to 6 months from the date of death.
4. Are all my assets gifted by my will?
No, assets you hold in trust will remain in the trust. As part of your estate planning you should provide for who will take control of trusts when you die.
Superannuation and the proceeds of life insurance policies may not come into your estate to be gifted by your will. You can take steps, as part of your estate planning, to ensure that your superannuation and life insurance is paid in accordance with your wishes.
5. Who will look after my children if I die?
If both parents of a child under the age of 18 years dies then guardians for that child can be appointed by the will of the last parent to die. Appointing a guardian for your children in your will is the simplest way to ensure that the people you want to look after your children are the people who do care for them.
6. How do I know if my will is out of date?
We recommend that people read over their will and enduring power of attorney at least once a year to check that the documents still reflect their wishes. The circumstances that may require a new will:
- Marriage – revokes a will
- Divorce – a gift to a former spouse is treated as if it is deleted from the will
- When children are born
- If your financial situation changes
- If you receive an inheritance
- If you sell assets mentioned in your will
- If people mentioned in your will die
7. How will my will be found when I die?
In Queensland there is no central register for wills. Wills can be kept in a range of places – at home, bank safe custody, with your solicitor, financial planner or accountant.
We recommend when you make a will, keep the original (or a copy) with your important documents, such as birth certificate and passport. Let your executor and other family members know where it is located. Give a copy of the will to the executors and keep one of our will locator cards in your wallet.
8. What are the formal requirements of a will?
The will maker must be at least 18 years of age (unless they are under 18 years and married).
The will must be in writing and signed by the will maker, in the presence of 2 witnesses, not named in the will, who are present at the same time. The 2 witnesses must also sign the will. If the witnesses are beneficiaries of the will, then any gift to them in the will is void.
9. How do I go about making a will?
A will can be made a in a number of ways: a will kit, Public Trustee, private trustee company over the internet or with your solicitor. To ensure your will is made properly and all of the formal requirements have been met we recommend that you have your will prepared by a solicitor with experience in making wills.
10. What do I need to think about before I make my will?
Things to think about before you make your will:
- Who to appoint as executors of your will. Executors control your assets after death, attend to all paperwork, make decisions and then distribute the gifts outlined in the will.
- If you have children under the age of 18 years, who would you like to appoint as their guardian.
- Who do you wish to give your assets to after death. Also, consider who you would wish to benefit from your will if your immediate family does not survive you.
- You will need to provide your solicitor with full names (including middle names) and street addresses of people mentioned in your will.
- You will also need to provide your solicitor with a list of assets including superannuation, life insurance, trusts and businesses. Asset information is relevant to ensure the people who you want to receive your assets do. Some assets do not necessarily pass through your will, for example, superannuation and assets held in a company or trust.
Call today for assistance – 07 5575 9990
Dillon Legal
