LAST WILL & TESTAMENT
Make the right move for your future…
WHO SHOULD MAKE A WILL?
Everyone eighteen (18) or older should make a Will.
Although you may not have many assets now, and might not think it’s worth having a Will, you may receive unexpected amounts of money at any time, such as an inheritance, for which you would require a Will.
If you do not have a Will, you rely on the laws of intestacy to decide who will get your hard-earned assets. That decision is taken out of your hands.
THE MAKING OF A WILL
The first two things to note when making a Will are:
- Your superannuation (if you have any) may not form part of your estate to be distributed in accordance with the Will. It is often the case when you start paying superannuation, that you are asked to nominate a beneficiary who is to receive the proceeds of the fund should you pass away.
- If two people own land as joint tenants, which is usually the case for a married couple, then the surviving spouse will own the land outright because it automatically transfers upon death.
These two areas are important if the Husband and Wife separate. For example, if a Husband nominates his Wife as a beneficiary under a superannuation policy and didn’t change it after separation, on his death, the Wife would be entitled to receive the proceeds of the fund even though they have separated.
CONTEMPLATION OF MARRIAGE
If you are contemplating marriage in the near future, then your Will must be made in “contemplation of marriage”. The law in Queensland states that a Will is invalidated upon marriage if it is not made in contemplation of marriage.
SELECTING AN EXECUTOR
The Executor of a Will is the person appointed to take care of the affairs of the estate on death. They are responsible for the collection of all assets, payment of any debts, and distribution of the estate in accordance with the Will.
It is imperative that the person chosen as Executor is completely reliable and honest and has a reasonable commercial sense.
Up to four (4) executors may be appointed under a Will and it is also usual for a Testator (the person making the will) to appoint a further Executor should the original Executor die before the Testator.
You may give a specific gift to a beneficiary, which is taken out of the pool of assets in the estate. Specific gifts can be items such as jewellery, tools, paintings, heirlooms, etc.
There are benefits of giving specific gifts, as they are one of the last gifts to be used if required when paying the debts of the estate.
You may also give specific sums of money to a beneficiary. The effects of inflation ought to be kept in mind and you should review your Will from time to time.
REST & RESIDUE
You will often leave “the rest and residue” of your estate to one or more beneficiaries. The rest and residue of an estate is anything not given anywhere else in the Will.
The Will must be witnessed by two people over the age of eighteen (18) who are not beneficiaries under the Will. If a beneficiary witnesses the Will, their gift is void.
The most common beneficiaries are the spouse and/or children of the Testator. It is important to ensure that the definition of children is clear. Under the State of Children Act 1978, illegitimate children of the Testator are included in the description “my children”. Foster children are not considered children within this definition. It is also imperative that any stepchildren to be included are specifically named.
30 DAYS SURVIVORSHIP
Under the Succession act of Queensland, a beneficiary will not receive any gifts left to them unless they survive the Testator for a period of 30 days.
WHERE SHOULD I KEEP MY LAST WILL & TESTAMENT?
Your original Last Will and Testament should be kept in a safe place, preferably a fire-proof locked safe (your Solicitor, Accountant or banking institution can keep your important documents in safe custody on your behalf).
Estate Administration is the process that a personal representative (usually appointed by a Will) undertakes to attend to the legal requirements in respect of an estate so that the property can be distributed lawfully to the entitled beneficiaries.
THE ROLE OF A PERSONAL REPRESENTATIVE
The personal representative is the person appointed by someone’s Last Will & Testament, or who is otherwise the most appropriate person to act in that capacity on behalf of a deceased person.
The Queensland Civil Procedure Rules provide for who can be appointed and the order of priority of appointment.
The personal representative’s first duty is to arrange for and to attend to payment of the funeral of the deceased person.
The payment for the funeral is the first priority of the estate and must be paid before any distribution can be made to any beneficiary.
It is important that if instructions to the family members have been given in a Will of the deceased, to make enquiries of the deceased’s solicitor and family to ascertain those instructions.
It would be appropriate to investigate whether the estate is capable of paying for the funeral expenses as sometimes a family member may be called upon to pay with an expectation of repayment at a later date.
It is important to meet with a Lawyer as soon as possible after the death of a loved one. The Solicitor will advise you of the processes necessary to administer the estate and distribute to the beneficiaries.
The solicitor should review the Will to ensure it’s validity and that it has been properly signed, dated and witnessed and that on the face of the document there is no reason to doubt it’s authenticity and intention.
It is very useful to a solicitor to gather together the personal papers of the deceased and provide a list of assets and liabilities, together with contact details.
The following is a list of possible assets which may be of assistance in determining as estate:
- Cash / money in the possession of the deceased, in the house or in a business;
- Money held in a bank account or other financial institution;
- Money due or payable to the deceased;
- Shares in companies;
- Bonds and debentures;
- Motor vehicles;
- Real estate and rents payable or received;
- Life insurance policies;
- Wages due to the deceased;
- Interest in any business / partnership / company;
- Crops, livestock, farming implements;
- Furniture, tools and purchased items;
- Other property or entitlements.
Liabilities of an estate would include the following:
- Mortgages / loans payable;
- Credit or bank card accounts;
- Hospital and medical bills;
- Tax debts;
- Other debts payable by the estate.
The Administrator normally opens a bank account in the name of the estate. If a solicitor is acting, the solicitor will often open an account and hold the funds in trust for the estate. This gives a level of transparency to the personal representative’s actions and is an appropriate way to be accountable to the beneficiaries.
The Executor will arrange for the assets to be valued to determine their value for sale or distribution.
The Executor attends to the payment of all liabilities and costs of the estate. The Executor also attends to the sale of assets (if applicable) then distributes the assets according to the terms of a Will or if an intestacy (no Will) according to the Rules of the Succession Act.
The personal representative usually accounts to the beneficiaries in respect of the distribution and the beneficiaries normally sign off to say that they are satisfied with the way in which the estate has been finalised.
GRANT OF PROBATE
A Grant of Probate by the Supreme Court of Queensland is a certification that the Will is the last valid Will of the deceased person.
The Grant of Probate gives the Executor the authority on which to act and relieves the Executor of any liability to any disappointed beneficiaries.
The process of obtaining a Grant of Probate includes the following:
- Advertising an intention to apply for a Grant of Probate
- Notification to the Public Trustee of an intention to apply for a Grant of Probate
- Completion of Affidavits by the Executor
- Filing documents in the Supreme Court together with the appropriate fee.
LETTERS OF ADMINISTRATION
If the deceased person did not have a Will, they are said to have died intestate.
An application for Letters of Administration is required to be made to the Supreme Court of Queensland for appointment of a personal representative to act for the estate.
Legal advice should be obtained as soon as possible after the death of the intestate person to ascertain the appropriate person to make this application.