Wills & Estates Queensland
Protect what matters most. Plan for the people you love.
Whether you’re planning ahead, managing a loved one’s estate, or facing a dispute over a will, our experienced Queensland team is here to guide you through the process with compassion, clarity, and care.
Our team specialises in all aspects of wills and estates law, including estate planning, deceased estates and will & estate disputes.
Estate Planning
Secure your legacy. Protect the people who matter most.
Our lawyers understand the importance of estate planning for the future.
Determining the appropriate asset structure, or a combination of structures, is fundamental to successful estate planning to secure our clients’ legacy, particularly when important tax and asset protection consequences flow from these critical decisions.
Our comprehensive estate planning services provide peace of mind and ensure assets are protected and distributed according to each client’s specific wishes.
Whether a simple will or complex testamentary trust is required, our experienced team guides clients through every step of the process.
Our estate planning expertise includes:
- Drafting wills (whether simple or complex, such as establishing testamentary trusts), rights of residence/occupancy and life estates
- Preparing enduring power of attorneys, appointments of enduring guardianships and advance health care directives
- Comprehensive succession planning including corporate structures, family trusts, companies, partnerships and self-managed superannuation funds
- Assessing insurance and superannuation policies and preparing appropriate death benefit nominations (including for self-managed superannuation funds)
- Life tenancy agreements
- Mutual will agreements
- Special disability trusts
- Guardianship and financial management applications
- Statutory will applications
Deceased Estates
Guiding executors through one of life's most difficult responsibilities.
We focus on providing comprehensive and practical advice to executors to guide them through the deceased estate process. We pride ourselves on giving executors peace of mind, knowing that they have competently discharged their duties as an executor in accordance with the will.
Our deceased estate expertise includes:
- Assessing and determining deceased estate requirements for simple and complex estate matters
- Obtaining a grant of probate or letters of administration
- Providing sound advice to executors regarding their estate management duties
- Assisting executors with the administration and distribution of domestic and international assets, including collecting assets, paying estate liabilities and expenses, and facilitating the transfer and distribution of assets to beneficiaries (including appropriation of any assets if required)
- Preparing deeds of family arrangement
- Advising and acting on informal will applications where the will does not comply with formal requirements (for example, handwritten or DIY wills)
- Advising and assisting with complex probate and letters of administration applications
- Advising and acting on will rectification and construction issues
- Assisting with and collecting entitlements for superannuation and insurance death benefit claims
- Advising on and applying for executor’s commission.
Will & Estate Disputes
We're in your corner when it matters most.
We understand the complexities of family dynamics and appreciate that additional grief can arise when someone is unfairly excluded from a will or is facing a will or estate dispute.
We sensitively guide our clients through difficult times by ensuring their matter is dealt with smoothly and efficiently all the way through.
We specialise in resolving will and estate disputes to protect our clients’ interests through negotiation, mediation and judicial determination.
Our will & estate disputes expertise includes:
- Contesting or challenging a will due to no or inadequate provision made under a will (known as family provision applications)
- Defending the estate to uphold the provisions of a will in family provision applications
- Contesting, challenging or defending the validity of wills based on issues including lack of capacity, undue influence or fraud
- Resolving conflicts between executors/trustees and beneficiaries, including breaches of fiduciary duty and mismanagement of assets
- Protecting the rights of beneficiaries in disputes over inheritance and asset distribution
- Addressing allegations of misconduct or negligence by executors, trustees and other fiduciaries
- Advocating for the rights and best interests of incapacitated individuals through guardianship and conservatorship, ensuring they receive proper care and management of their affairs.
Our People
Bianca Stafford | Senior Associate | Cairns
Bianca is an experienced lawyer advising in all areas of succession law, including estate planning, estate administration and estate litigation. Bianca has been advising on succession law for the entirety of her career and understands the complexities of family dynamics. She strives to provide tailored advice that suits each client’s individual circumstances. Her expertise enables her to guide her clients through difficult times by ensuring their matter is dealt with smoothly and efficiently. She is passionate about helping clients achieve the best possible outcomes.
We follow a simple process
01
Book a consultation
02
We understand your wishes
03
We draft your documents
04
You review and approve
05
Signed and secured
FAQs
Estate Planning
Why do I need a Will?
A will is important for ensuring that your wishes are honoured upon your death. If you pass away without a will, the distribution of your estate will occur in accordance with the rules of intestacy under legislation, which may not be in line with your wishes.
A will also provides for other important appointments including the executor of your estate and guardian of minor children. It can also set out your wishes regarding funeral arrangements.
Having a valid will in place prepared by an experienced wills and estates lawyer not only gives you peace of mind but also mitigates stress on family members and loved ones in the long run.
Can I prepare a Will myself?
A will is a legal document and there are certain requirements that must be followed, set out by the legislation, when preparing a will to ensure that the will is valid. As such, our strong recommendation is that you have a will prepared by an experienced wills and estates lawyer. We often see will and estate disputes arise when people pass away without a valid will. This causes significant delay, costs and stress for loved ones at what is already a very difficult time.
Estate planning is more than just the preparation of a will. It involves careful consideration of:
- Who should be appointed as your executor to administer your estate. This should be someone you trust implicitly
- Your family dynamic and relationships, including whether anyone may have a claim on your estate, and if so, ways to reduce the risk of a successful claim
- What assets do and do not form part of your estate, ensuring that non-estate assets (for example, life insurance and superannuation) are appropriately dealt with
- Whether any of the beneficiaries require additional measures including testamentary discretionary trusts, to protect their inheritance from relationship breakdowns and creditors or for tax planning purposes
- Who should be appointed as your trusted attorney to look after your financial matters and personal/health matters, in the event you were to lose capacity and could not make decisions for yourself. Again, this should be a person you trust completely
- Companies, partnerships, family trusts and self-managed superannuation funds to ensure the appropriate management and succession in the event of your passing.
What happens if I pass away without a Will?
If you pass away without a will then you are deemed to have died intestate and the law dictates:
- who can be appointed as the administrator of your estate; and
- how and to who your estate is to be distributed.
This may not be in accordance with your wishes and is often the cause of wills and estates disputes between family members.
I don’t have any assets, do I still need a Will?
Estate planning is more than just the preparation of a will.
There is a common misconception, especially amongst younger adults, that they do not have any assets and therefore do not need a will or estate plan. This is usually incorrect.
If you have been working, in most cases, you will have superannuation which often includes a life insurance component. This can be a sizeable amount of money.
In the absence of a valid superannuation binding death benefit nomination, the trustee of your superannuation fund will have discretion as to who they pay the death benefit to and in what amount.
We often see disputes arising between family members as to who should receive the superannuation benefit and disagreements with the trustees’ decisions. Generally, there is only a limited class of beneficiaries who can be nominated to receive a death benefit, otherwise you may nominate your estate. For this reason, it is important to have a superannuation binding death benefit nomination and will in place.
A will also assists your family members to attend to many of the smaller administrative tasks such as closing your bank accounts, cancelling insurances and subscriptions, receiving employee entitlements, and finalising tax matters. Surprisingly, these tasks can be very difficult to attend to without a will.
In the event you were to pass away without a valid will, according to the legislation, there is a priority scheme that stipulates who can apply to be appointed to be the administrator of your estate. This may not be in accordance with your wishes and is often the cause of disputes between family members.
Does superannuation form part of my estate?
Superannuation is typically a non-estate asset and does not automatically form part of your estate in the event of your passing. In order to direct who you wish to receive your superannuation upon your passing, you should have a valid binding death benefit nomination in place. These nominations often lapse so it is important that they are reviewed and renewed regularly.
In the event you do not have a valid binding death benefit nomination in place, the trustee of your superannuation fund has complete discretion to determine who should receive your superannuation death benefit. This may not be in accordance with your wishes and is often the cause of disputes between family members.
What is an enduring power of attorney?
An enduring power of attorney is a legal document that allows you to appoint people who you trust to look after your financial and personal/health matters in the event that you are still alive but have lost capacity to make these decisions.
In the event you lose capacity and do not have a valid enduring power of attorney in place, your family members/friends may be required to make an application to the Tribunal to be appointed as financial administrator and/or guardian. This can be a stressful and lengthy exercise at a time when urgent decisions may be required to be made.
If there is a dispute between family members/friends as to who the most appropriate person is to be appointed, the Tribunal may appoint the Public Trustee and/or Adult Guardian to manage your affairs.
What is an advance health directive?
An advance health directive is a legal document that provides your attorneys with directions about your future health care.
How often should I review my Will?
We recommend reviewing your estate plan every three years or in the event of any big life changes such as:
- Marriage
- Separation
- Divorce
- Birth of a child
- Change in ownership of assets or
- Death of an executor, attorney or beneficiary.
Estate Administration
What are my duties as an executor/administrator of an estate?
Duties of an executor/administrator include:
- Applying for a grant of probate or letters of administration (on intestacy/with the will)
- Calling in estate assets
- Paying estate liabilities
- Arranging final tax return/s for the deceased and the estate
- Providing regular updates on the administration of the estate to the beneficiaries
- Avoiding conflict of interests and acting in the best interests of the beneficiaries
- Preserving the assets of the estate and avoiding wastage
- Attending to the distribution of the estate assets to the beneficiaries in accordance with the terms of the will and
- Defending the estate from family provision claims and will disputes.
What is a grant of probate?
“Probate” is the official recognition by the Supreme Court that the will of the deceased is valid and the executor has the authority to deal with the assets and liabilities of the deceased and administer the estate in accordance with the terms of the will.
It is common in the administration of any deceased estate for a grant of probate to be required particularly where there are assets held with an institution such as a bank or superannuation fund are more than $25,000 in value.
What are the different types of grants of probate?
A grant of probate can have two forms:
- Where there is no dispute about the validity of the will, a common form grant is made by the registrar of the Supreme Court – it is a procedural process requiring advertising and the filing of court documents or
- where there is a dispute about the validity of the will, a solemn form grant is made by a Supreme Court judge, after consideration of all of the relevant evidence at a court proceeding.
If you have concerns about the validity of a will, you should obtain advice from an experienced wills and estates lawyer as soon as possible, as a caveat may need to be filed in the Supreme Court registry.
Who can apply for a grant of probate?
The executor of the will is the only person who can apply for a grant of probate.
If there is no will, then the law sets out a priority scheme as to who is entitled to apply for a grant of letters of administration on intestacy (which is similar to a grant of probate, in that the court authorises a person to deal with the administration of the estate). The law also sets out who will be the beneficiaries of the estate, if someone passes away without a will.
If an executor is unable or unwilling to act and there is no substitute executor named in the will, the law sets out a priority scheme as to who is entitled to apply for a grant of letters of administration with the Will.
If you are unsure whether you need to obtain a grant of probate or are eligible to apply for a grant of letters of administration, please contact our experienced wills and estates solicitors to obtain further information.
What is a caveat in contested Will proceedings?
A person with an interest in the estate of a deceased person can file a document called a caveat which prevents the court from issuing a grant of probate/letters of administration in the estate.
Caveats are usually filed when an interested person has concerns about the validity of the will (due to lack of capacity of the deceased and/or undue influence) or the suitability of the executor/administrator.
Where there are concerns about the validity of a will, a caveat should be filed in the court as soon as possible, to prevent the issuing of a grant to the executor/administrator.
If you have concerns about the validity of the will or suitability of an executor/administrator, please contact our experienced wills and estates lawyers for further information.
Do I need to apply for a grant of probate?
It is not always necessary to apply for a grant of probate. Whether a grant of probate is required generally depends on the nature and value of the assets in the estate. There are however some protections afforded to an executor who obtains a grant of probate.
If you would like further information about whether you need to apply for a grant of probate, please contact our experienced wills and estates lawyers.
What does obtaining a grant of probate involve?
Obtaining a grant of probate includes the following:
- Advertising a notice of intention to apply for grant
- The executor completes an affidavit in support of the application
- The application, affidavits, will and death certificate are filed with the Supreme Court and
- The registrar of the Supreme Court considers the material and provides the grant of probate.
Navigating the probate process requires careful attention to the legal procedures and adherence to timeframes. Understanding the steps involved and seeking professional advice from an experienced wills and estates lawyer can help ensure a smooth administration of an estate. Whether you are an executor or a beneficiary, being informed about probate will assist in managing expectations and responsibilities during the estate administration. Our wills and estates lawyers can help you with this.
What is a grant of letters of administration?
A grant of letters of administration on intestacy is usually required when a person passes away without a will (known as dying intestate). A grant of letters of administration on intestacy appoints an administrator to deal with the assets and liabilities of the estate and make the distributions to the beneficiaries prescribed by law. The law sets out a priority scheme as to who can apply for a grant of letters of administration, which may not be in accordance with your wishes.
A grant of letters of administration with the will is generally required when there is no executor appointed under the will that is able or willing to act (i.e. the executor has passed away, has lost capacity or is unwilling or unable to act).
Will Disputes
What is a family provision claim?
If you have been unfairly excluded from a will or have been provided inadequate provision in a will, it is important to seek advice as soon as possible about your rights and entitlements to contest a will, known as a family provision claim/application.
A family provision claim/application is an application made to the court, made by an eligible person who has not been adequately provided for in a deceased person’s will or under the intestacy laws.
Am I eligible to contest a Will?
The legislation in each state sets out who the eligible people are to make a family provision claim (i.e. when a person has been left no provision or inadequate provision under a will). The class of eligible applicants varies state to state but generally includes spouses (including de facto spouses), children (including stepchildren and legally adopted children) and certain dependents.
A will can also be contested or challenged where there are concerns about the validity of the will due to issues such as lack of the will-maker’s capacity, knowledge and approval of the will (i.e. suspicious circumstances) and/or undue influence.
If you are considering disputing challenging or contesting a will or estate, it is important to seek legal advice promptly to ensure that you are aware of your rights and your interests are protected. Please contact our experienced wills and estates lawyers to obtain preliminary advice as to whether you are eligible to dispute, challenge or contest a will.
Are there time limits for contesting a Will?
Yes, there are strict time limitation periods to make a family provision claim and they vary in each state.
In certain circumstances an “out of time application” may be made, however they are at the discretion of the court.
Please contact our experienced wills and estates lawyers as soon as possible to obtain preliminary advice and ensure that your interests are protected.
What does the Court consider in family provision applications?
The court considers various factors in assessing whether an order for provision should be made from a deceased estate and in what amount. These include:
- The applicant’s relationship with the deceased
- The financial needs and circumstances of the applicant. This includes assessing their current financial status, income, liabilities/debt, special needs or financial burdens
- The size and nature of the estate
- Contributions (financial and non-financial) made by the applicant to the building up of the deceased’s estate
- The deceased’s intentions.
Every case will turn on its own facts, so it is important to seek advice from an experienced wills and estates solicitor early on so you are fully informed of your rights and interest.
How much will I get if I contest the Will?
Family provision applications are determined by applying the following:
- Whether or not adequate provision has been made for the applicant’s proper maintenance and support and
- If adequate provision has not been made, then the court will consider whether an order for provision will be made, and if so, in what amount. In determining this question, the following matters are addressed:
- The size of the estate
- The provisions under the will
- The applicant’s financial position
- The applicant’s health and medical condition
- The relationship between the applicant and the deceased
- Other competing beneficiaries’ relationship with the deceased, circumstances and need.
Each case turns on its own set of facts and circumstances. If you would like further information about disputing, contesting, or challenging a will, please contact our experienced wills and estates lawyers.
Do I need to go to Court to contest a Will?
At Moray & Agnew Lawyers, our wills and estates solicitors are highly experienced in handling wills and estates disputes. The majority of our will dispute cases are settled efficiently and discreetly without the need for a trial.
Please contact our experienced wills and estates lawyers for further information.
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