fbpx

Guide to Inheritance Laws Queensland

May 15, 2024

Inheritance laws determine how a deceased person’s estate is distributed. These laws ensure that assets are allocated either according to the deceased’s wishes, if articulated in a Will, or via legal guidelines when no valid Will exists.

This blog aims to provide some guidance around the often complex process of estates, offering clear insights into creating Wills, the implications of dying without one, and the roles and responsibilities of executors in Queensland.

Understanding Inheritance Laws in Queensland

Inheritance laws, also known as succession laws, govern the distribution of a deceased person’s estate. These laws ensure that the deceased’s property, money, and possessions are distributed according to their wishes (if they have a Will) or according to legal guidelines (if they do not have a Will). Here are some key phrases you’ll likely come across:

  • Intestacy: A term which refers to a person who dies without having made a valid Will. Intestacy laws determine how the estate is distributed.
  • Probate: The legal process through which a Will is reviewed and validated by a Court. Probate ensures that the Will is authentic, and that the executor is authorised to distribute the estate.
  • Executor: The person named in a Will who is responsible for managing the estate, paying off debts, and distributing the assets as specified in the Will.
  • Beneficiary: An individual or entity named in a Will or by the intestacy laws to receive a portion of the estate.
  • Testator/Testatrix: a person who has written and executed a last Will and testament that is in effect at the time of their death.

Wills in Queensland

Having a Will ensures that your estate is distributed according to your wishes. A Will allows you to appoint an executor, name beneficiaries, and make specific bequests. Without a Will, your estate will be distributed according to intestacy laws, which may not reflect your preferences.

To ensure that a Will is valid in Queensland, it must meet several legal requirements:

  • Legal Age: The person making the Will (testator) must be at least 18 years old, although there are exceptions for younger individuals under specific circumstances (e.g., military personnel).
  • Mental Capacity: The Will maker must have the mental capacity to understand the nature of making a Will, the extent of their assets, and the claims of potential beneficiaries.
  • Formalities: The Will must be in writing and signed by the testator. Additionally, the signing must be witnessed by at least two individuals who are present at the same time and who also sign the Will.

 

It is important to review and update your Will regularly to reflect changes in your circumstances, such as marriage, divorce, the birth of children, or changes in your assets. A Will can be updated by creating a codicil (an amendment to the Will) for minor changes such as the change of Executor, or by making a new Will altogether.

There is no legal requirement for a lawyer to draft your Will, but who better to do so? A lawyer can help you understand the legal requirements, address specific issues like the distribution of your assets, guardianship of minors, and help avoid common mistakes that could potentially lead to disputes or challenges after your death.

What Happens If You Die Without a Will?

If you die without a valid Will, your estate is distributed according to the intestacy rules set out in the Succession Act 1981 (Qld). These rules prioritise close family members and follow a specific order of distribution.

If you are survived by a spouse and children, the estate is divided between them. Ordinarily, the spouse receives all the household contents, plus the first $150,000, with the remainder being shared among any children.

If there is no spouse or children, the estate is distributed to other relatives in the following order: parents, siblings, nieces and nephews, grandparents, uncles and aunts, and cousins.

The Role of the Executor

The executor of a Will carries the critical responsibility of managing the estate of the deceased until all assets are appropriately distributed. 

This includes collecting and managing all the deceased’s assets, and ensuring that any debts, taxes, and liabilities of the estate are fully paid off. After these financial responsibilities are handled, the executor must then distribute the remaining assets to the beneficiaries as specified in the Will. An important part of the executor’s role is also maintaining detailed records of all transactions and decisions made during the estate’s administration.

 

How to Choose an Executor

Selecting an executor is a decision of great significance and requires careful consideration. It is crucial to choose someone who is not only reliable and trustworthy but also organised enough to handle potentially complex tasks associated with managing an estate. 

Most individuals will choose a family member or their beneficiary to act as their executor. In cases where the estate is particularly complex, it might be wise to appoint a professional, such as an estates solicitor or accountant, who can bring a high level of expertise and experience to the management of the estate.

Probate Process in Queensland

Probate is the legal process of validating a deceased person’s Will and authorising the executor to administer the estate. It ensures that the Will is genuine and that the executor has the legal right to manage the estate. The application process:

  • Locate the Will: Find the original Will and any codicils.
  • Notification/Advertising: Notify beneficiaries and relevant parties of the application by advertising your intention to apply for probate.
  • File the Application: Submit an application for probate to the Supreme Court of Queensland.
  • Court Review: The court reviews the application and the Will.
  • Grant of Probate: If approved, the court issues a Grant of Probate, giving the executor legal authority to administer the estate.

 

The executor must present the original signed Will along with any codicils, the death certificate, and any evidence that you have advertised your intention to apply for a grant of probate. An affidavit of the executor is also required, which is a sworn statement affirming the executor’s commitment to administering the estate faithfully. Finally, the probate application form, which is provided by the Supreme Court of Queensland, must be filled out and submitted.

The timeline for the probate process can vary significantly, taking anywhere from several weeks to several months. The duration largely depends on the complexity of the estate and any disputes that might arise during the process. As for the costs, they generally include court fees, legal fees, and other administrative expenses necessary to manage and finalise the estate. These costs can vary, typically ranging from a few thousand dollars to tens of thousands of dollars, depending on the specific requirements and complexity of the probate proceedings.

Contesting a Will

A Will can be contested for various reasons, including lack of testamentary capacity, undue influence or fraud, and insufficient provision for dependents. 

The legal process to contest a Will begins by consulting with a solicitor who has experience in estate disputes. The next step is to lodge a caveat with the Supreme Court of Queensland to prevent the granting of probate without prior notification. Disputes can sometimes be resolved through mediation; however, if mediation fails, the only other option is to commence legal proceedings in Court. 

Claims to contest a Will generally must be made within six months from the date of the Grant of Probate, although the Court may extend this period under certain circumstances. It is advisable to act promptly when deciding to contest a Will.

Family Provision Claims

Family provision claims allow certain individuals to contest the distribution of an estate if they can demonstrate that adequate provision has not been made for them in the deceased’s Will. Eligible claimants typically include a spouse, children, or financial dependents.

For a claim to be successful, claimants must demonstrate their financial need, their relationship with the deceased, and any promises the deceased may have made to them regarding provision. Successful family provision claims can significantly alter the distribution of the estate, as the court may reorder the distribution to provide for the successful claimant.

Protecting Your Inheritance

Protecting your inheritance involves a few critical steps to ensure that your newly acquired assets are managed wisely and sustainably. 

It is advisable to seek legal advice to understand your rights and any legal obligations that may come with your inheritance. 

Financial planning is also crucial; working with a financial advisor can help you make informed decisions about investing and managing your inheritance. Common pitfalls to avoid include making large, unplanned expenditures or neglecting to plan for potential tax implications.

At The Legal House, we’re experienced wills and estate planning lawyers. We offer a free consultation to all individuals to offer advice and support through will drafting, family provision applications, and grants of probate.

Chat With a Wills and Estate Planning Lawyer Today

At The Legal House, we appreciate the sensitive nature of discussions surrounding estate planning and strive to handle each case with the utmost respect and professionalism. We separate ourselves from the pack by focusing on your individual needs, offering empathy and understanding throughout the process. To assist individuals in navigating the complexities of inheritance laws, we are pleased to offer a complimentary initial consultation.

We encourage you to take advantage of this opportunity to discuss your specific circumstances, explore your options for asset protection and financial agreements, and confirm that our services align with your legal needs. If you are based in Queensland, book your free consultation today, and take the first step towards managing or securing your inheritance with confidence and peace of mind.

Nick Harrison

Nick Harrison

Founder & Solicitor

Nick is passionate about family law, domestic violence, and wills and estates, Nick has been practising as a Solicitor of the Supreme Court of Queensland and the High Court of Australia since 2012.  He provides practical legal advice to his clients, using his unique blend of impeccable legal skills and real-life experience as a police officer, husband and father.

Explore Our Latest Articles

Please get in touch!

Copyright © 2024 The Legal House   |   Website by Three Peas Marketing