Wills – Fixed Fee

People are often concerned by the costs involved in estate planning. However, we believe that a bigger concern is the much bigger and unnecessary cost, expense, and heartache suffered by surviving family members disputing inheritance as a consequence of no or poor estate planning.

We know this too well considering one of our primary practice areas is Estate Litigation. It is never desirable to see hard-earned inheritance be squandered by legal fees instead of being passed down as intended. What people try to save by either simply ‘hoping for the best’ or taking a cheap DIY option is often lost many times over by squabbling family members.

Fixed Fee Will Options

A Basic Will is much better than an over-the-counter Will available at news agencies and online. We often see DIY Wills that have been either poorly considered or completed incorrectly and therefore become invalid or ineffective upon death.

A Basic Will drafted by a lawyer will ensure that it is completed and witnessed correctly in order to leave your assets to nominated people.

The completed will can be kept by you or stored in our safe keeping at no cost.

A Complex Will is the next step above a Basic Will. Your will may have complex considerations such as:

• if you currently hold any property held in a trust;
• if you are you operating a business;
• if you are a party to a binding financial agreement (‘BFA’);
• if you wish to exclude anyone from receiving a benefit under your will;
• if you have children to more than one partner.

Careful consideration towards your will is required to ensure that your wishes are carried out as intended.

The completed will can be kept by you or stored in our safe keeping at no cost.

A Complex Will With Testamentary Trust Deed is the Rolls Royce of Wills. It provides the strongest level of protection to your beneficiaries.

Like the Complex Will which may include testamentary trust clauses, including the actual Trust Deed sets out directions for your nominated executor which must be followed. This can be particularly important for those who may leave behind a child with a disability or who has special care needs.

This protection has the potential to limit your beneficiaries’ tax burden as well as make it more difficult for people not named in your will to argue a claim on your estate.

The completed will can be kept by you or stored in our safe keeping at no cost.

Frequently Asked Questions About Wills

What happens if I die without a will?

In Queensland, if a person dies without a will, they are said to have died ‘intestate’. In Queensland, Part 3 of the Succession Act 1981 (Qld) sets out how an estate is to be distributed in this instance.

In summary, the estate is to be distributed as follows:

Source: The Public Trustee, Queensland. Note: the term “issue” in the red box above simply means a child.

There are other benefits to having an up-to-date will, including:

• the ability to include or exclude beneficiaries;
• a more streamlined process when you die, as your executor will be nominated in your will allowing them to commence important processes such as funeral arrangements without any debate or dispute as to who should be the administrator of the estate (which can cause significant delay); and
• if you were involved in particular litigation that was not yet finalised, your family and legal representatives are able to quickly and easily make arrangements to continue the legal action on behalf of your estate. Courts can dismiss the proceedings if an order seeking to join a person in the deceased’s place is not sought within 3 months from the date of death so a delay in the administration of an estate can sometimes cause the loss of continuing the action which would likely reduce the overall size of the estate.

Separated or Divorced?

If you are married and the relationship breaks down, it is not enough to simply separate. You must file in court for a Divorce Order (formerly called a Divorce Certificate or Decree). If you do not do this and you pass away with or without a will, your ex-partner will be entitled to claim a significant part or all of your assets.

In Queensland, if you do have a will and then divorce, Section 15 of the Succession Act 1981 (Qld) sets out that a formal Divorce will revoke the following:

1. Any beneficial interest the Will maker’s former spouse had under the Will;
2. Any appointment the former spouse has as an executor, trustee, advisory trustee or guardian under the Will; and
3. Any grant, made by the will, of a power of appointment exercisable by or in favour of the Will maker’s former spouse.

Terminology – Trustee, Executor, Guardian, Beneficiary… what’s the difference?

An executor is the person (or persons) you appoint in your Will to collect your assets and administer your estate upon your death. They will execute your wishes.

A trustee is the person (or persons) you appoint in your Will to manage and administer any trusts created in accordance with the terms of your Will. In most cases the trustee will be the same person as the executor and the terms are often used interchangeably.

A guardian is often appointed as the person (or persons) as the carer of any children under the age of 18.

A beneficiary is someone that benefits from your will – i.e. someone who will actually or potentially receive something from you upon your death.

What is an ‘Enduring Power of Attorney’?

An Enduring Power of Attorney is a document appointing someone (your attorney) to act for you and make decisions on your behalf whilst you are alive.

Your attorney can make decisions about:

• Personal (including health) matters – Personal matters relate to personal or lifestyle decisions. This includes decisions about support services, where and with whom you live, health care and legal matters that do not relate to your financial or property matters.
• Financial matters – Financial matters relate to your financial or property affairs including paying expenses, making investments, selling property or carrying on a business.

What is an ‘Advance Health Directive’?

An Advance Health Directive (or AHD) is a legal document that allows you to give directions about your future health care and special health care.

• Health care includes most medical treatments, procedures and services to treat both physical and mental conditions. When nearing the end of your life, the definition of health care also includes life-sustaining treatment.
• Special health care includes special procedures such as participation in special medical research.

Your advance health directive also allows your wishes to be known and gives health professionals direction about the treatment you want. Examples of wishes people might include are instructions not to receive a blood transfusion due to religious beliefs, or to not resuscitate.