Table of content
- Can I Make a Will for Free?
- What are the Risks of using Free Will Services?
- Executor’s Responsibilities in Queensland
- What is the Price of Drafting a Will in Queensland?
- Who Inherits When There Is No Will in Queensland?
- Who Qualifies as a Spouse?
- What Happens If There Are No Spouse or Children?
- How can I challenge a will?
- How can GM Law help with your Will?
In moments of loss and grief, concerns about property tax and government regulations are typically the furthest from your thoughts. Coping with the loss of a loved one can become complicated when property inheritance comes into play. However, gaining insight into estate and inheritance laws can provide some clarity during this challenging time, making it a bit more manageable.
Can I Make a Will for Free?
Yes, you can choose to craft your own Will by obtaining a Will Kit, available for purchase at post offices, newsagents, or downloadable from the internet. However, it’s crucial to ensure that any downloaded material complies with the legal requirements for a Will in your specific jurisdiction, such as Queensland.
Another free option available in Queensland is to create your Will through the Public Trustee.
What are the Risks of using Free Will Services?
When you create a will, it’s essential to understand that your assets will be distributed according to your specified wishes upon your passing. However, this process doesn’t happen instantaneously and requires someone to ensure your wishes are carried out. This individual is known as an ‘executor’, and they have a legal obligation to ensure that the instructions in your Will are executed correctly.
When banks or building societies assist you in creating a Will for free or at a nominal fee, they often expect you to appoint them as the executor of your Will. This can have implications, including potential fees associated with their executor services.
To avoid potential high costs associated with legal firms or banks as executors of your will, you can choose to appoint your own executor, typically a trusted family member or friend. This way, you have more control over the administration of your estate according to your wishes.
Another concern is that the person taking instructions and drafting Wills in these cases may not be a qualified lawyer, or they may be a junior lawyer lacking experience, which can lead to technical and legal errors in the document.
Executor’s Responsibilities in Queensland
In Queensland, the primary statutory duties and obligations for executors are outlined in Section 52 of the Succession Act 1981 (Qld). These responsibilities encompass the following:
- Gathering and managing the deceased’s real and personal estate in compliance with the law.
- Furnishing a comprehensive inventory of the estate and providing an account of their estate administration when mandated by the court.
- Surrendering the Grant of Probate or Letters of Administration when requested by the court.
- Distributing the deceased’s estate, subject to estate administration, as promptly as feasible.
- Paying interest on any general legacies in the Will, typically at a rate of 8 percent per annum.
In addition to these core obligations, an executor is also tasked with various other duties, including:
- Arranging the funeral of the deceased.
- Locating the Will and informing beneficiaries of their entitlements.
- Initiating the application for a Grant of Probate from the Supreme Court of Queensland.
- Obtaining valuations for the testator’s assets.
- Safeguarding and preserving the testator’s assets.
- Settling any outstanding debts or liabilities of the estate, including tax matters.
- Compiling financial statements.
- Managing the transfer or sale of assets.
- Defending the Will in case someone initiates litigation against the estate.
Please note that this list does not encompass all of an executor’s responsibilities, as additional obligations may be specified in the testator’s Will.
What is the Price of Drafting a Will in Queensland?
In Queensland, the cost of creating a Will can vary. Sometimes it’s a fixed rate, typically ranging from $1000 to $3000. An efficient attorney can typically gather comprehensive instructions and conduct a legal capacity assessment for most standard Wills in approximately 40 minutes to an hour, with variations based on specific circumstances. Paralegals may assist in drafting the documents to reduce costs, but the lawyer should review and verify them. The final cost of a Will can be influenced by various factors, such as:
- Whether you have a blended family.
- Your marital history (remarriage, separation, or divorce).
- Specific instructions for gifting.
- Excluding someone from your Will who would typically inherit.
- Involvement of company or family trusts.
- Prior gifts or loans made before your passing.
- Unique circumstances like leaving assets that would usually transfer to another joint owner upon your death.
You can potentially reduce the cost of creating a Will by investing time in understanding your situation.
Consider the following steps:
- Compile a list of your assets and debts.
- Determine your preferred beneficiaries for your assets.
- Explore various ways to allocate your assets.
- Select an executor to manage your estate after your passing.
Additionally, if you decide to work with a lawyer, providing this information beforehand can help streamline the process during your meeting, potentially saving time and costs.
Who Inherits When There Is No Will in Queensland?
In Queensland, when a person passes away without a will (intestate), their assets are initially distributed to their closest living relatives. This category encompasses the deceased’s spouse and their children, also referred to as “issue.” In cases where the deceased has a surviving spouse but no children, the entire estate, after settling debts and funeral expenses, goes to the spouse. The remainder of the estate is divided among the deceased’s children. If there is only one child, the spouse and child equally divide the residuary estate. If there are multiple children, the spouse inherits one-third of the residuary estate, with the remaining balance divided equally among all children.
When there is no surviving spouse but surviving offspring, the children inherit the intestate estate in equal shares.
Who Qualifies as a Spouse?
The legislation governing intestacy in Queensland defines a spouse as an individual in a lawful marriage, a registered relationship, or a de facto partnership with the deceased. Under this law, de facto partners, including same-sex partners, are afforded the same rights as legally married spouses. To qualify as a de facto spouse, it is essential for the partner to have either previously registered the relationship or provide evidence of cohabiting with the deceased in a “genuine domestic arrangement.” In Queensland, for a de facto spouse to be eligible to inherit a share of an intestate estate, they must have been in the relationship for a minimum of two years before the date of the deceased’s passing.
When evaluating whether two individuals shared a genuine domestic relationship, the court considers various factors, including the duration of their relationship, whether they resided together full-time, the presence of a sexual relationship, any financial interdependence, joint property ownership, shared responsibility for children and household activities, as well as societal recognition of their couple status. The court also examines less tangible aspects, such as their commitment to a shared life. Ultimately, despite the complexities of inheriting as a de facto spouse in cases of intestacy in Queensland, it is likely that a de facto spouse will receive a distribution similar to that of a legally married spouse.
If someone is separated but not divorced from their spouse when they pass away intestate in Queensland, the law still considers them legally married, and the separated spouse is entitled to a share of the deceased’s estate.
What Happens If There Are No Spouse or Children?
If the deceased had no spouse or children, intestacy in Queensland results in other relatives inheriting the estate, following a specific order outlined in legislation. This order begins with the deceased’s parents and then moves on to siblings, nephews and nieces, grandparents, uncles, aunts, and cousins. In-laws and step-parents are not eligible to receive distributions from an intestate estate. In Queensland, the distribution of an intestate estate stops at the level of the first cousin, which differs from some other jurisdictions where more distant relations, like third cousins, may inherit from an intestate estate. If no close relatives can be identified, the intestate estate reverts to the state.
How can I Challenge a Will?
If you believe you’ve been unjustly excluded, the initial step in contesting a will involves acquiring a copy of the will and thoroughly reviewing it. To navigate this process effectively, it’s essential to enlist the assistance of a skilled attorney.
Your most effective strategy for securing a share of the estate is to establish that the will is invalid. This typically involves demonstrating that the testator signed it under duress or when they were mentally incapacitated.
How can GM Law Help with Your Will?
GM Law solicitors have over 25 years of experience in Queensland. We understand that preparing a Will is more than just a formality and very often it is associated with the execution of a power of attorney, challenging a Will, and complex legal situations. Our team is ready to help you with any Will nuances.
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