SUCCESSION LAW

What We Do

Greyson Legal are experienced wills & estates lawyers. We provide a range of succession law services to cater for the needs of our clients. 

We all know life can be busy, and it’s easy to overlook things like your Will or Enduring Power of Attorney. However, if you have not properly considered your estate planning and put in place appropriate measures, it can cause financial and emotional stress if an unexpected death or injury arises.

Whether you are a business owner looking at succession planning, a high wealth individual requiring a more complex Will or you are just after a simple Will, we can assist you.

Our Succession Law

Practice Areas

  • Wills Preparation

  • Wills Advice

  • Testamentary Trusts

  • Applying for a Grant of Probate

  • Applying for Letters of Administration

  • Estate Administration

  • Business Succession Planning

  • Enduring Powers of Attorney

  • Advanced Health Directives

DIY Will Kits

Given each person's circumstances are different, we do not recommend you use off the shelf do-it-yourself Will kits. DIY Will kits cannot adequately deal with more complex situations. 

By engaging a solicitor to assist you with your Will:

  • you minimise errors being made;

  • you reduce the risk of the Will becoming invalid;

  • disputes about the interpretation of the Will are lessened;

  • you receive peace of mind knowing the document has been professional prepared; and

  • issues that you may not have considered can be raised by your solicitor and discussed with you.

WILLS

A Will is essentially a written 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 basic to the more complex. Each person’s particular circumstances and wishes will govern the complexity of the Will.

Validity

For a Will to be valid, it needs to comply with certain criteria, such as:

  • generally, the Will maker must be 18 years of age or older;

  • it must be in writing;

  • it must be signed by the person making the Will and be validly witnessed;

  • the Will maker must have testamentary or legal capacity.

Executor

An Executor is a person who a Will maker appoints in their Will to carry out the directions in the Will. Executors have a number of duties, such as:-  arranging the deceased's funeral; collecting the assets of the estate; coordinating payment of the Will maker’s debts from estate funds; and distributing the remaining assets of the estate in accordance with the Will.

We recommend a Will maker appoint at least two executors in their Will, so there is a back-up in place. But a Will maker could appoint more than this. Where there are several executors, the Will needs a mechanism to deal with cases where the executors fail to agree. 

Beneficiary

A beneficiary is a person 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); and/or the residuary of the estate (ie. after other gifts have been given and any estate debts have been paid).

Minor Children

A Will may contain provisions that a part of the estate is to be held subject to specific conditions. For example, that inheritances for children are to be held until they reach a certain age, say 18 years of age. Where part of the estate is to be held subject to such specific conditions, a “trust” is created. A person will normally be appointed under the Will to hold these estate funds. This person is called the “Trustee”. Often the executor also takes on the role of Trustee.

Testamentary Guardian

It is also possible to draft the Will to include provisions appointing a person (or persons) as Testamentary Guardian of a Will maker's children that are 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. Generally, the Testamentary Guardian would have the same types of powers, rights and duties of the parent.  

Amending | Revoking a Will

A Will can be amended by a Codicil or it can be revoked, provided the Will maker has capacity.

Marriage and Divorce

Various events can impact on a Will, such as:- marriage and divorce. Appropriate legal advice should be obtained in relation to these issues.

Challenging a Will

It is possible that notwithstanding the wishes of a Will maker as set out in the Will, that a disgruntled family member (where they are an “eligible applicant” under the Succession Act 1981 (Qld)) can seek to claim that he or she has not been adequately provided for and bring a Family Provision Application ("FPA") against the estate. We recommend you obtain appropriate professional advice regarding family provision claims.

Joint Tenancy

Assets held in a joint tenancy arrangement do not form part of the estate to be distributed under the Will. Rather, such assets automatically pass to the surviving joint tenant upon death.

Trusts and Companies

Assets owned by discretionary trusts do not become part of the estate. Nor do assets owned by a company. The shares in the company are, however, assets which form part of the deceased’s estate. 

Superannuation and Life Insurance

The trustee of a superannuation fund has a discretion as to whom it can pay death benefits – ie., to the various beneficiaries/dependants as defined under the Superannuation Industry (Supervision) Act 1993 (SIS Act) or to the legal personal representative of the deceased’s estate. However, it is possible to adopt a Binding Death Benefit Nomination (BDBN) which gives specific directions to the superannuation trustee regarding distributing the member's death benefits.

Generally, if you have life insurance outside of your superannuation policy, then the insurer will pay the proceeds of the policy directly to the beneficiaries nominated in your life insurance policy.   

Grant of Probate

Following death of the Will maker, the executor appointed under the Will typically lodges an application with the Court for a grant of probate.

A grant of probate confirms that the Will is the last Will of the deceased upon which the executor, the beneficiaries and others may act and rely.

Once probate is granted:

  • it confirms the formal acknowledgment from the Court that the executor is the person who has the authority to deal with the estate;

  • the executor is legally authorised to sign documents related to the assets and liabilities of the estate;

  • the executor, who in good faith and without any negligence, who has obtained a grant of probate is typically not liable for any gift or asset distributed in accordance with the directions in the Will.

Intestate

A person that dies without a Will is referred to as intestate. The process for dealing with the deceased’s estate in an intestacy is regulated 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.

Testamentary Trusts

In essence, a Testamentary Trust involves one or more trusts being set up within a Will. 

Testamentary Trusts are typically used for taxation minimisation and asset protection reasons, including protecting the assets of the trust from being wasted by a wayward beneficiary, eg. due to drug addiction, gambling or alcohol abuse.

ESTATES

Duties and Powers of Executors

The overall duties of executors are:

  • To collect the assets of the estate;

  • To pay the liabilities of the estate; and

  • To distribute the estate in accordance with the Will (subject to any Court order, such as, in respect of a Family Provision Claim under the Succession Act 1981 (Qld)).

In performing these duties, the executors bear all the usual responsibilities of trustees, including the duties to act honestly and diligently and to avoid conflicts of interest.

Administering the Estate

During the administration the executor controls and is responsible for all of the assets of the estate.

Executors have a number of tasks to carry out, such as:

  • Opening a bank account in the name of the executor of the Will (for monies received from the estate to be deposited) – if not already done;

  • Keeping adequate records of dealings with the estate;

  • Informing beneficiaries of their interest in the estate;

  • Making sure the deceased’s home and contents remain secure;

  • Insuring the estate’s assets (if not already insured);

  • Checking monthly or periodic outgoings of the deceased (eg. Foxtel, movie streaming (Netflix), music streaming, cloud services, gyms, telephone, internet, etc) and arrange for cancellation of bank direct debits and provision of these services;

  • Checking if deceased had motor vehicle or home and contents insurance – deal with as required;

  • If needed – arranging disconnection of electricity/gas/telephone services to the deceased house;

  • Checking if the deceased is member of any clubs (eg. RSL club) - if any memberships were paid in advance you should ascertain if a refund is payable;

  • Ascertaining if the deceased had an interest in any businesses, and to maintain these interests until they can be appropriately dealt with;

  • Notifying the relevant government departments and others of the death of the deceased, such as:

    • Centrelink;

    • Australian Taxation Office;

    • Australian Electoral Commission;

    • Department of Transport;

    • Veterans Affairs;

    • Banks;

    • Life Insurance provider;

    • Super Fund Trustees;

    • Comsec or similar in relation to shares in public companies;

    • Electricity and gas providers;

    • Telephone provider;

  • Etc

Estate Documentation

Typically, the following documents are needed to assist with administering the deceased’s estate:

  • Certified death certificate of the deceased (the original having been filed with the Supreme Court);

  • Certified Will of the deceased (the original having been filed with the Supreme Court);

  • The deceased’s:

    • Funeral account;

    • Bank statements/passbooks of accounts held by the deceased;

    • Most recent tax return (or pension statement) of the deceased;

    • Superannuation policies;

    • Life insurance policies;

    • Birth certificate of the deceased. (Eg. this may be needed if there is a life insurance policy).

  • All other documents showing the assets and liabilities of the estate.

Assets of the Estate

The executor needs to verify and collect assets of the deceased.

Subject to the terms of the Will (and the type of asset), assets of the estate may either be:

  • transferred directly from the deceased to the beneficiaries; or

  • first transmitted to the executors for a later sale or transfer.

Loans owed to the Estate

If there are any moneys which the deceased previously lent out to people, you should clarify the arrangements regarding those loans and the obligations of the borrowers in regards to repayment of those moneys.

Estate Taxation

As executor you should:

  • notify the Australian Taxation Office of the deceased’s death online. There is a prescribed form for this purpose: Notification of a deceased person(NAT 74279); and

  • lodge with the ATO a final Tax return for individuals(called a 'date of death tax return') on behalf of the deceased person (for the period 1 July XX up to the date of death) OR advise the ATO that a tax return is not necessary.

Death generally does not constitute a disposal for CGT purposes. However, any subsequent disposal of the deceased’s assets by either the deceased’s personal representative or the beneficiaries could give rise to a CGT liability.

It is recommended that you seek assistance from an accountant with regard to estate taxation.

Distributions to Beneficiaries

A final distribution to beneficiaries can only be made after all liabilities (including tax) have been paid.

Expenses of Estate Administration

Executors have the right to be indemnified from the estate for all of their expenses properly incurred in the administration of the estate.

ENDURING POWERS OF ATTORNEY (EPOA)

An enduring power of attorney gives someone ("the Attorney") a legal power to make decisions on behalf of another person (“the Principal”).

The document to create an EPOA is a statutory form.

A Principal can give the Attorney powers to make decisions about the Principal's:-

  • Personal/health matters; and/or

  • Financial matters.

The Attorney must:

  • be over 18 years of age;

  • not be the Principal's current paid carer or health care provider (such as a nurse or doctor); and

  • for financial matters, not be bankrupt or insolvent.

More than one Attorney can be appointed.

The power of attorney can:

  • be limited in its effect, eg. the Principal can specify decisions that they do not want the Attorney to make; or

  • more general in its application.

For personal/health matters, the Attorney's power begins only if the Applicant becomes incapacitated or incapable of making their own decisions.

For financial matters, the Principal can state when the Attorney's power is to begin.

Provided the Principal has capacity, they can change or revoke an EPOA at any time.

Certain circumstances can also bring the EPOA to an end, eg. if the Principal dies, divorces, etc. Appropriate legal advice should be obtained as to these revocation events.

There are strict requirements in relation to the execution and witnessing of the EPOA document.

ADVANCE HEALTH DIRECTIVE

An Advance Health Directive (AHD) is sometimes called a living Will. It allows you to state your wishes or directions regarding your future health care in respect of various medical conditions.

The AHD only comes into effect if you are unable to make your own decisions.

Whereas an Enduring Power of Attorney (EPOA) can be adopted by a Principal to give directions to an attorney in the event the Principal loses mental capacity, there are certain limits to an EPOA. For example, an EPOA cannot deal with special health matters, being matters which relate to the special health care of the Principal, such as:

  • removal of tissue from the principal while alive for donation to someone else;

  • sterilization of the Principal;

  • etc

 If you wish to give directions about “special health matters” or issues like withdrawing or withholding of life-sustaining medical treatment, you will need an Advance Health Directive (AHD).

Also, an AHD does not appoint an attorney to act on your behalf (like an EPOA), the AHD allows you to set out specific wishes within the AHD document with regard to your medical treatment.

Although an AHD is quite broad in terms of the directions you can give, there are some limitation with an AHD. For example, under the current Queensland Criminal Code it is a criminal offence to accelerate the death of a person by an act or omission or being party to performing euthanasia. 

You must be over 18 years of age to use an AHD and have capacity. The AHD is a legal document and is in a prescribed statutory form.

A doctor will need to complete part of the AHD form and your execution of the form must be witnessed by a justice of the peace or commissioner for declarations, lawyer or notary public.

The AHD can be changed or revoked at any time provided you still have capacity to do so. 


For further details, contact Greyson Legal | Wills and Estates lawyers.