Menu
Click To Call: (07) 5575 2844

Wills & Estates
FAQs

We have included some helpful information on Wills and Estates based on common questions we receive from our customers. You may also wish to read FAQs on Enduring Power of Attorney. For a more detailed explanation, or for legal advice about your specific situation, contact our experienced estate lawyers on the Gold Coast.

Do I need a Will?

Yes. Everybody over the age of 18 should have a legal Will.

A vaild Will ensures your Estate is dealt with as you wish and not in accordance with State Legislation. It also makes it much easier for your loved ones to deal with all matters at a difficult time.

What if I don't have a Will?

If you don’t have a Will you are said to have died intestate and your Estate will be dealt with in accordance with the Intestacy Rules under State Legislation. In Queensland your Estate is dealt with under the Succession Act 1981.

When should I update my Will?

You should regularly consider your Will and whether it needs to be updated.

If you get married you should update your Will as a marriage automatically voids any pre-existing Will unless it has stated to have been made in contemplation of marriage.

Getting divorced also has an effect on a Will so you should consider doing a new Will if you get divorced.

You should consider updating your Will if your personal circumstances change, including moving, changes in your financial circumstances, receipt of substantial amounts including from another Estate or if you have children.

What issues do I need to consider when preparing my Will?

There are many issues which need to be considered, however, the most important would be the following:

  1. Who you should appoint as the Executor - The Executor is the person or persons who you appoint to administer your Will.  It is their job to collect your assets and any liabilities and distribute the estate in accordance with your Will. An Executor has an important role.  In many circumstances, husbands and wives will appoint each other as their Executors and if they have adult children they will often appoint their children if something were to happen to their spouse. If you have young children then you need to give careful consideration to who you will appoint as the Executor if, for example, both spouses died together as the Executor would be the person responsible for administering the Estate and handling the money on behalf of any minor children until they obtained their majority and this can obviously be an extremely important and possibly difficult role. The Executors may not necessarily be and do not have to be the Guardian of any minor children.  In many circumstances it may be of benefit to have the Executor (as the person handling the finances) separate to the person who you would appoint as Guardian of any minor children. 

  2. Beneficiaries -  The Beneficiaries are the people who are to receive your Estate. Quite often the Estate will be left to a spouse and/or children or close family. Consideration will need to be given beyond immediate family for example in circumstances where all immediate family may have passed away and some consideration should be given to what is to happen to your Estate in those circumstances.

  3. Guardians – If you have minor children then you will need to appoint Guardians whose position it will be to make decisions in relation to the child including their health, education and residence.

Are there any assets which do not form part of my Estate?

Yes.

Many people have Trusts which have been established as part of their business or asset holding structures, and any assets which are owned by Trusts do not form part of an individual’s Estate. Therefore, the Will maker must give special consideration to any Trusts that may exist and ensure the control of those Trusts is transferred to the person or persons who will properly administer the Trusts in accordance with the Will maker’s wishes.

Superannuation and Life Insurance benefits may also sometimes not form part of the Estate depending on whether the person has made pre-existing nominations as to who is to benefit from the superannuation or life insurance in the event of their death.

Where should I keep my Will?

Original Wills are extremely important documents and should, at all times, be stored safely.

Wills should also be stored very carefully as sometimes if they're stored, for example, with paperclips or other items which somehow mark the Will, issues may arise when bringing the Will into effect on someone’s death as the Courts will sometimes assume that some markings on a Will may have resulted in changes or additions having been made to the Will. This can often result in extra expenses and delays after the Will maker has passed away.

Davoren Associates offer the free storage of original Wills in our safe custody.

Can I write my own legal Will?

The short answer is yes, you can write your own Will.

Nowadays it's easy to go on online and research how to draft a Will yourself. However, you cannot be certain that what you write yourself conforms to the legal requirements. it is therefore important to exercise caution with DIY Wills, as they may not be suitable for your individual circumstances and are highly contestable in court.

An experienced Wills and Estates Lawyer will ensure your Will is valid and complete. Contact Davoren Associates or visit our Surfers Paradise office to obtain solid legal advice at a reasonable price.

What happens if I lost my Will?

The lack of a Will means the estate will be considered to be intestate and will be managed according to the Intestate Succession Act. This means your personal wishes may not be met.

There are a number of steps you can take to locate a missing Will before seeking professional help, including:

  • Searching the deceased’s property and personal belongings;
  • Contacting his or her former solicitors, financial advisors, accountants or anyone who may have had access to the original Will, including family and friends;
  • If the law firm under which the deceased’s Will was drafted no longer exists, contact your State’s law institute or society.

If the Will cannot be found after above steps have been taken, you can engage Davoren Associates to seek a grant of probate of a lost Will. Obtaining a grant of probate for a lost Will requires that an application be made to your State’s Supreme Court and requires that the applicant demonstrate the following:

1. That there was an actual Will;
2. That the Will revoked all previous Wills;
3. That there is evidence of the lost Will’s terms;
4. That there is sufficient evidence to demonstrate that the deceased intended the document to constitute his or her Will.

If you cannot locate a Will or have any further questions, we recommend you liaise with our solicitors to assist you in preparing the necessary Application.


Additional Resources