Estate planning involves more than deciding who inherits what when you die. It can also mean protecting family and business interests, planning for incapacity and ensuring different assets and structures are dealt with appropriately.
A will is an important part of this process, but it may not cover every asset or circumstance. This is where a wills and estates lawyer can help. QBM Lawyers works with individuals, families and business owners across the Gold Coast to develop a coordinated estate plan – one that reflects your wishes and is in line with Queensland law.
1. Create a valid will
A will is the foundation of your estate plan. It identifies your beneficiaries, appoints an executor to administer your estate, and sets out how your assets should be distributed.
If you die without a will (known as dying intestate), your estate will be distributed according to Queensland’s intestacy provisions under the Succession Act 1981 (Qld). This statutory formula may not reflect your wishes, particularly if you have a blended family, are in a de facto relationship, or own a business with more complex asset structures.
It’s worth reviewing your will after significant life events. Marriage generally revokes an existing will unless an exception applies, while divorce can revoke provisions relating to a former spouse. Having children, losing a beneficiary or executor, or acquiring or disposing of significant assets may also mean your will no longer reflects your current circumstances..
For couples, mutual wills may be worth considering. Mutual wills involve a binding agreement about how certain property will ultimately be distributed, often including an agreement not to change the agreed arrangements after the first person dies. They can be useful in circumstances such as blended families, where both parties want greater certainty about how assets will eventually pass to their children. However, mutual wills can significantly limit flexibility and do not prevent family provision claims, so it is important to discuss whether they are appropriate with an estate lawyer.
2. Consider a testamentary trust and statement of wishes
A testamentary trust is created under your will and comes into effect after your death. Rather than passing directly to a beneficiary, assets can be held and managed within the trust. This may be useful where beneficiaries are minor children, face financial or relationship risks, or where greater control over the management and distribution of an inheritance is desirable.
A statement of wishes is a separate, usually non-binding document that sits alongside your will. It helps explain your intentions and gives additional guidance to an executor or trustee on matters such as how you would like a testamentary trust to be managed or your wishes regarding the care of minor children.
3. Plan for assets outside your will
A complete estate plan needs to look beyond the assets dealt with directly by your will. Some assets, such as certain jointly owned property and assets held in a trust, may not form part of your estate. Others, including business interests, may form part of your estate but still require separate succession planning. Superannuation is also subject to its own rules about who can receive a death benefit.
Superannuation
Recent Super Consumers Australia research found that just 13% of people surveyed said they had made a binding death benefit nomination. The organisation estimates that at least 15.5 million Australians may not have one in place, meaning their super fund trustee may retain discretion over who receives their benefit if no other binding arrangement applies.
Your super death benefit does not automatically form part of your estate or get distributed according to your will. Without a binding death benefit nomination, the trustee of your super fund generally has discretion to decide who receives your benefit, depending on the fund and its rules.
A binding nomination directs the trustee to pay your death benefit to an eligible dependant or your legal personal representative, provided the nomination is valid and in effect. Some binding nominations lapse after a specified period, while others may be non-lapsing.
Trusts
Assets held by a family or discretionary trust are generally owned by the trustee rather than by you personally, so they cannot be distributed through your will. Succession will instead depend on the trust deed, including how it deals with the appointor or principal – the person who typically has the power to appoint or remove the trustee.
Business interests
For business owners, a buy and sell arrangement can set out what happens to your interest in the business if you die or become incapacitated. These arrangements, often supported by insurance, can provide certainty for surviving owners and your family, while helping to avoid disputes over valuation or ownership.
Because estate planning often intersects with tax, superannuation, trust structures and business succession, an experienced estate lawyer can work alongside your accountant or financial adviser to help ensure your plan is properly coordinated.
4. Planning for incapacity, not just death
Estate planning isn’t only about what happens after you die. It also covers who can make decisions for you if you lose the capacity to make them yourself, whether due to illness, injury or age.
An enduring power of attorney, made under Queensland’s Powers of Attorney Act 1998, allows you to appoint someone you trust to make financial and/or personal matters, including health decisions, on your behalf. For personal and health matters, your attorney can only act when you do not have capacity to make the relevant decision yourself. For financial matters, you can choose when their authority begins, including immediately, from a specified time or when you lose capacity. Unlike a general power of attorney, an enduring power of attorney can continue to operate if you lose capacity.
An advance health directive allows you to give directions about future health care, including certain end-of-life and life-sustaining treatment decisions, if you’re unable to make or communicate those decisions yourself.
How to reduce the risk of an estate dispute
Even a carefully prepared will can be challenged. Under Queensland law, a family provision claim allows certain people, including spouses, de facto partners, children and certain dependants, to apply to the court for further provision from an estate if they believe they haven’t been adequately provided for.
While no estate plan can eliminate the risk of a dispute, careful planning can help reduce uncertainty and misunderstanding. This may include:
- clearly documenting your decisions, particularly where beneficiaries are treated differently
- using a statement of wishes to provide additional context where appropriate
- reviewing how superannuation, trusts and other assets outside the estate will be dealt with
- keeping your will and broader estate plan up to date as your circumstances and relationships change.
How estate lawyers on the Gold Coast can help
Legacy planning looks different for everyone. Some clients need a straightforward will; others require a more layered approach involving trusts, superannuation nominations and business succession planning.
QBM Lawyers works with clients across the Gold Coast on both simple and complex estate planning matters, tailoring advice to your circumstances rather than applying a one-size-fits-all approach. We will also work alongside your accountant or financial adviser to ensure your plan is properly coordinated.
If you need help planning your estate or drafting a will, the team at QBM Lawyers can assist. As experienced estate lawyers on the Gold Coast, we can help you prepare a comprehensive legacy plan fully compliant with Queensland law.
Frequently Asked Questions
Yes, you can write your own will in Queensland, but it must meet certain legal requirements to be valid. It must be in writing, signed by you and witnessed by two adult witnesses. However, errors or unclear wording could create problems when your estate is administered and potentially lead to disputes. A wills and estates lawyer can help ensure your will is properly prepared and complies with Queensland law.
Not necessarily. Your will generally deals with assets that form part of your estate, such as property, money and investments you own in your sole name. Some assets fall outside your estate. For example, jointly owned property may pass automatically to the surviving owner, while superannuation death benefits and assets held in a trust may be dealt with under separate rules or arrangements. This is why a legacy plan often involves more than just a will, particularly for individuals with a more complex financial or asset profile.
Many wills name a substitute or backup executor for this reason. If your executor dies before you or is unable or unwilling to act, the substitute executor generally takes over. If no substitute is named or no executor is able to act, an appropriate person may need to apply to the Supreme Court of Queensland for letters of administration with the will annexed. The estate can then still be administered according to the terms of your will.
A valid will made interstate doesn’t generally become invalid simply because you move to Queensland. That said, moving states is a good time to have your estate plan reviewed. Succession and incapacity laws differ between states and territories, and documents such as enduring powers of attorney and advance health directives may operate differently in Queensland. An estate lawyer on the Gold Coast can review your existing documents and advise on where changes are needed.
