Wills and Estates
If a person dies without a will their property is divided according to formulae and lists under the Succession Act called the intestacy rules. It is likely that a distribution according to the intestacy rules will differ from the way the individual would have liked their estate to be distributed if they had chosen for themselves by preparing a Will. If the person had no close relatives the estate might be forfeited to the State. The intestacy rules make no provisions for friends as opposed to family.
Absence of a will is also likely to lead to further costs in administration of the estate.
If the family home is owned by husband and wife as joint tenants and only one of them dies the remaining spouse will obtain full ownership of the property regardless of the terms of the will or the intestacy rules. All that is required, is lodgement of the appropriate form with the Department of Natural Resources.
Similarly, the balance of a joint bank account may simply go to the surviving spouse.
Frequently the proceeds of superannuation policies or death benefits relating to superannuation policies will not form part of the estate with the trustees distributing the proceeds directly to family members in pursuant to a nomination by the deceased or at the trustee’s discretion, sometimes the trustees shall pay to the estate.
Therefore, in some cases what needs to be administered by the estate is smaller investments – individual shareholdings, small term deposits and other bank accounts. The financial institutions holding those investments will often pay out to be executor of a will or otherwise allow the executor to deal with those investments without requiring a Court order recognising the position of the executor (“Probate”), provided that the Probate is not required for any other reason and the investment with that institution does not exceed a set amount say $15,000.
Where there is no will however those institutions will require a Court grant of Letters of Administration.
Additionally, a grant of Letters of Administration can be a more time-consuming and expensive process than a grant of Probate as the Supreme Court needs to be satisfied of further matters.
If you have a will, you should review it every five years and so, or whenever there is a significant change in your circumstances or the membership of your family.
If you have married, divorced, separated, entered into a new long-term relationship, family members or friends have died, you have disposed of or replaced assets nominated specifically in the will, or friends you have nominated as executors have moved overseas you should consider whether the terms of your existing will still reflect your wishes.
Note that marriage will revoke a Will unless the Will is expressed to be made in contemplation of the marriage. Divorce, in Queensland, while leaving the Will otherwise unchanged, will render invalid any bequest to the spouse and any appointment of the spouse as an executor unless an intention to the contrary can be seen.
Neither rule applies to beginning or ending a de facto relationship.
This is also an appropriate time to review any family trusts and private corporate structures.
The family trust might give certain powers of amendment to an Appointor with an alternative Appointor nominated in the event of death of the first but with power to the Appointor to transfer powers to another Appointor by Will or other instrument. If that alternative Appointor has died, a replacement should be nominated and the Appointor’s Will might be an appropriate place to do so.
With blended families, it is common for the couple to want to leave portions of their estate to children from prior relationships. Sometimes the couple have their wills prepared together and leave everything to each other but in the event, that both have died then half of the estate goes to the children of the husband and half of the estate goes to children of the wife. Often left unstated in the wills is the mutual intention that the wills will be left unchanged after the death of either of the couple so that in the long term the children from prior relationships take a share in the estate regardless of which parent dies first.
If that is the intention then it is best that a separate document be drawn up as a contract to make “mutual wills” which will not be revoked by the survivor and for copies of the contract to be provided to the beneficiaries.
When providing instructions to your solicitor to prepare your wills you should detail any concerns and explain any surrounding circumstances. These circumstances should include details of any person who you are not making any provision for where that might seem unusual to outsiders. If you have an estranged son or daughter who you are not making any provision for you, should discuss that with your lawyer rather than simply providing instructions leaving your estate to your other children by name.
The Succession Act allows dependents of a testator/testatrix (a person who makes a Will) to apply to the Supreme Court after the testator’s death for an order varying the terms of the Will on the basis that adequate provision was not made for them and that if the testator had properly considered who bequests should be made to, the testator would have made a bequest to the applicant. Generally, in Queensland a healthy adult who is not in receipt of financial support at the time of the testator’s death will not be successful in such a claim but there is a risk not only of having some provision made out of the estate for the estranged family member but also of the legal costs, of both the estate in defending the claim and the family member in making the claim, paid out of the estate further reducing the assets available for the intended beneficiaries.
There may be measures you can take to reduce the risk of such a claim, such as:
- ensuring superannuation entitlements are in funds with binding nominations;
- ensuring property is in joint names rather than as tenants-in-common;
- preparing a statutory declaration setting out the extent of the estrangement and why no bequest has been made.
You can decide the amount of help you need in administering the estate of a family member in discussion with our team member. You might wish to have the more formal legal matters attended to by Furgan Lawyers and interact with banks and other financial institutions yourself.
A court grant of Probate or Letters of Administration is not necessary in all estates.
You might take stock of what assets are available and contact the relevant financial institutions as to their requirements and then contact us, if you are informed there is a need for Probate or Letters of Administration or other requirements which you cannot understand or complete.
On the other hand, you may see us, shortly after the funeral with any paperwork that you may gather and instruct us to deal with the financial institutions and apply for Probate or Letters of Administration if that becomes necessary.
Probate is an order of the Supreme Court attaching a copy of the Will and formally confirming the executor as executor of the Will.
Letters of administration are a similar grant to a person other than an executor named in a Will.
It might be a grant of Letters of Administration with the Will attached in circumstances where the unnamed executor or is unable or unwilling to act, or it might be a grant of Letters of Administration in intestacy.
Any of the grants will require the expense of court filing fees, advertising to ensure there are no wills or more recent wills, and affidavits from the person seeking the grant and perhaps others. For a grant of letters of administration will require the formal consents from everyone whom would be regarded as having an equal or greater title to seek the grant.
If land is held with the deceased as joint tenants, a formal request to note the change of ownership to the survivor alone should be lodged with the Department of Natural Resources and Mines.
If land forms part of the estate it can be transferred, in accordance with the Will, either to the executor/s, or directly to a beneficiary if there is a bequest of specific land to a named beneficiary or if there is a sole residuary beneficiary.