Succession Law
Greyson Legal | Wills and Estates
What We Do
As a commercial law firm, succession law forms part of Greyson Legal's practice areas.
It is important that business owners and individuals implement a succession plan to help safeguard your assets and ensure those you love and support receive the inheritance you intend.
It is equally important to have in place an attorney who can act for you if you become ill or suffer mental incapacity.
At Greyson Legal we provide a range of succession law legal services to assist our clients, including:
Simple Wills for small estates
More Complex Wills
Testamentary Trusts
Enduring Powers of Attorney
Advance Health Directives
applying for Grants of Probate
assisting with Will challenges | Family Provision Applications
Business succession planning
WILLS & ESTATES FAQ
Disclaimer
The material provided in this frequently asked question section is for general information only and is not to be relied upon as advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person or organisation acting or relying on this information or anything omitted from it. For legal advice specific to your circumstances contact Greyson Legal.
What is a Will?
A Will is a written legal document which details your wishes regarding the distribution of your estate (after payment of your liabilities) following your death.
Wills can take various forms from the more basic to the complex. Each person’s particular circumstances and wishes will govern the complexity of the Will.
Requirements for a valid Will
For a Will to be valid, it needs to comply with certain criteria. The general rules are:
the Will maker must be 18 years of age or older
Will must be in writing
Will must be signed by the person making the Will
Will must be witnessed
Will maker must have testamentary or legal capacity
What is Testamentary or legal capacity?
Testamentary or legal capacity means the person making the Will:
understands the nature of the Will and its effects
understands the extent of the property which they are disposing of; and
must comprehend and appreciate the claims to which they ought to give effect and the claims of those they have excluded from the Will.
The following are conditions which would likely cause concern of a lack of capacity:
brain damage
genetic conditions, such as Down Syndrome
degenerative disease, such as Alzheimers
What is an Executor?
An Executor is a person (or persons) over 18 years of age, who has legal capacity and who a Will maker appoints in their Will to:
organise the funeral of the Will maker
locate the current Will of the Will maker
obtaining a grant of probate of the Will
collect the assets of the estate (if necessary, selling them to convert them into money) and paying the Will maker’s debts
distributing the remaining assets of the estate to the beneficiaries in accordance with the Will.
An Executor is often a family member or friend, but can be a professional (eg. solicitor) or the Public Trustee.
What is a Benificiary?
A beneficiary is a person (or persons), charity, entity or other eligible recipient who receives a gift or benefit from the Will maker’s estate.
The Will maker can gift to their beneficiaries in a variety of way, including:
money
specific items (eg. jewellery | stamp collection)
real estate
shares
cars | boats
other assets of the estate
It is important to bear in mind that if the Will maker gives a specific item to a beneficiary under the terms of the Will, but by the time the Will maker dies that particular asset no longer exists, then the gift fails. For this reason, it is important to consider the nature of any specific gifts being given and how they are described in the Will.
What is a Codicil?
A “Codicil” is an additional document which is sometimes used to make minor amendments to an existing Will, such as, appointing a new Executor.
The Codicil is then appended to the existing Will. There are technical legal aspects which must be adhered to when adopting a Codicil.
Unless the change is very minor, we recommend a new Will be adopted rather than use a Codicil.
Can a Will be revoked?
Yes, a Will can be revoked.
There are a number of situations where an existing Will can be revoked either in whole or in part. For example:
as a general rule, if the Will maker makes a later Will then the later Will revokes an earlier Will
by Court order
provided the Will maker has testamentary capacity, the Will maker can revoke their Will at any time. This could be done by burning, tearing or otherwise destroying it with the intention of revoking it.
What is the effect of divorce on a Will?
If the Will maker divorces, a divorce has the effect of revoking:
any gift to the Will maker’s former spouse; and
the appointment of the Will maker’s former spouse as an executor, trustee or guardian.
However, until the divorce is formalised, the terms of any Will continue to apply whilst the Will maker remains married.
We recommend following separation the Will maker’s Will is amended.
What is the effect of marriage on a Will?
Unless a Will is made in contemplation of marriage, the effect of any subsequent marriage automatically revokes any existing Will.
Can a Will be challenged or contested?
Yes, a Will be challenged or contested.
It is important to be aware of the risks associated with any decision a Will maker may decide to make which could result in a family member or eligible person not receiving an entitlement under a Will.
If the family member is an “eligible applicant” under applicable legislation (such as, the Succession Act 1981 (Qld)) he or she could claim that he or she has not been adequately provided for and bring a Family Provision Application ("FPA") against the Will maker's estate.
There are time limits that apply to challenging a Will.
Before making any decision which could involve not adequately providing for either a spouse (even former spouse), child or dependant in your Will, we recommend you first obtain appropriate legal advice.
What is a Testamentary Guardian?
A parent (as Will maker) can include provisions in their Will appointing a person (or persons) as Testamentary Guardian of their children under 18 years of age.
The Testamentary Guardian is typically responsible for making decisions about the care, welfare and development of the children under the guardianship. This might include daily and long term care.
What is Probate?
This is the formal recognition by the Court that a Will is legally valid.
Following death of the Will maker, the Executor appointed under the Will typically lodges an Application with the Court for a grant of probate.
Depending on the particular circumstances, eg. value of the estate or joint ownership of estate property, it may not be necessary to obtain a grant of probate.
Appropriate legal advice should be obtained at the relevant time.
What happens if I die without a Will?
There is sometimes a misconception that when someone dies without a Will that the deceased’s estate automatically goes to the Crown (or government.) This is incorrect.
A person that dies without a Will is referred to as intestate.
Aside from a right of survivorship in relation assets held in a joint tenant arrangement, in the event there is no Will, the process for dealing with the deceased’s estate is set out in applicable legislation in each State or Territory in Australia, For example, in Queensland through the Succession Act 1981.
The Act sets out how the property of an intestate is distributed, which is based on a formula whereby a percentage is distributed to the surviving spouse, children and other family members.
Where there is no surviving spouse, children, parents or next of kin, the estate would then go to the Crown.
What are the disadvantages of not having a Will?
The deceased has no control over the distribution of their estate.
The statutory rules for distribution of the deceased’s estate may not accord with their wishes and may produce results the deceased did not want.
The deceased will have no say in whom will act as testamentary guardian for any minor children.
The estate may be administered by someone the deceased did not want to appoint to that role.
There is a risk the deceased’s estate will not go the people or charities to whom the deceased wanted.
To avoid these issues, we recommend having a Will prepared.
Deceased Estate Debts
Once a person has passed away, before the proceeds of the deceased’s estate can be distributed to the beneficiaries under the Will (or upon intestacy if no Will), the debts of the deceased first need to be paid from the estate.
Typically, the responsibility of ascertaining what comprises the deceased’s debts and then paying those debts (usually, after probate is granted) would fall to the executor appointed under the deceased’s Will.
If there is no valid Will, this responsibility would fall to the administrator of the estate appointed in accordance with the relevant State or Territory legislation, such as, the Succession Act 1981 (Qld).
There are two types of debts which may form part of the estate. Secured and unsecured debts.
Secured Debts
These are debts secured against some form of collateral. For example, a home loan is secured by a mortgage registered against the title to the property.
Unsecured
Unsecured debts are those that are not secured by collateral security. For example, credit card debts are usually unsecured.
If there are sufficient funds in the deceased's estate, any unsecured debts would be paid from the deceased person’s estate.
If there is insufficient funds in the estate, the lenders would be unable to require family members pay off the debts (unless a family member was a joint holder of an unsecured debt or are otherwise liable for the debt, such as, by being a guarantor under a loan facility.)
Joint Loans/Liabilities
If any bank loans are held in joint names, generally the surviving joint account holder would be required to maintain the account, including making any loan instalment payments.
If the bank loan is secured by mortgage over real property (eg. the family home), ideally the estate has sufficient funds to payout the home loan. Alternatively, the home could be sold and the proceeds used to payout the mortgage with any remaining equity then being dispersed to the beneficiaries of the estate.
Tax and Deceased Estates
Following the death of the Will maker, the Executor is required to lodge with the ATO all of the Will maker’s outstanding tax returns up to the date of their death.
If there is any tax payable in relation to the tax returns, the Executor will be responsible for arranging payment to the ATO of the tax out of estate, like any other debt.
Does property owned by a Pty Ltd company form part of a deceased estate?
Assets owned by Pty Ltd companies controlled by the deceased will not become part of their estate.
The shares, however, will be an asset which forms part of the deceased’s estate.
Professional advice should be obtained in regards to family companies with respect to estate and succession planning.
Family Trusts and deceased estates
Assets owned by discretionary trusts do not typically become part of a deceased's estate
This is because legal title to that property will be held by the trustee of the trust for the benefit of the beneficiaries of that trust
The treatment of any interest the deceased may have under the trust should be set out under the terms and conditions of the Trust Deed.
Professional advice should be obtained in regards to trusts in relation to estate and succession planning.
Life Insurance and Deceased Estates
Generally, the death benefit proceeds of the deceased’s life insurance do not form part of their estate. The death benefits are paid out by the insurer in accordance with the terms of the insurance policy.
Superannuation and Deceased Estates
Generally, the money or other assets held in the deceased’s superannuation fund do not form part of the estate and are distributed or dealt with by the super fund trustee in accordance with the terms and conditions set out in the deceased's superannuation trust deed.