[AMA] I am a Wills and Estate Planning Lawyer in Queensland

I am a Wills and Estate Planning Lawyer in Queensland. I'll answer what I can lol :)

Also practice in general property and commercial law as well.

Disclaimer:

You should seek independent legal or other professional advice before acting or relying on any of the content here or on the internet generally.

There are free legal advice clinics set up in Qld. See link below for locations: http://communitylegalqld.org.au

Also, I am only familiar with the Qld Succession Law so most of my answers are general or based on what I know in Qld. If you are question relates to a different state, I highly recommend that you seek independent legal advice from that state as it is likely to differ from Qld.

Feel free to PM me if you have any confidential enquiries.

Comments

  •  

    where are u based, need to do a TT will

    • +3 votes

      I work in Capalaba but we also have offices in Cleveland, Brisbane or Arana Hills. Happy to assist :)

  •  

    What does a Notary do? Can a normal lawyer notarise documents?

    •  

      A notary public has many different roles but most of them essentially certify international documents whereas normal lawyers can't. You need to be a pretty experienced lawyers and meeting certain requirement to apply to be one.

  • +23 votes

    Can you stipulate in your will that a designated person has to delete my browser history if I die? Asking for a friend

    • +12 votes

      Yes, you can include in your will that you wish/dreict a certain person to delete your browser history but they don't have to follow through with it. Best to not share your password to your computer at all to any one before you die so nobody can log in. Hope that answered your "friend's" question lol

  •  

    Recently, what is an example of an 'epic fail' from an individual who did not have their paperwork [wills and estate] in order, and what lesson can you teach us from their blunder?

    • +3 votes

      I've had clients where there spouses had not signed their Will before they pass away. Where there is no Will, there are certain rules (called rules of intestacy) which can be relied on to determine how the spouse's estate is to be distributed. The surviving spouse generally assumes they will get everything. However under the rules of intestacy, the estate gets divide in a certain way between the spouse and children, which they were not expecting.
      Lesson: if you want to leave everything to your spouse (and not your kids) at first instance, have a Will done.

      •  

        Thanks. I guess this must be common, and a lot of people (widows and widowers) come to you after the fact.

        Surely you've seen a few things go to the government and get 'taxed' out of the family. Any lessons here?

        •  

          Apart from tax, I actually haven't seen anything go to the government lol. If we are administering the estate then we know exactly what assets are owned by the deceased and how it is to be deal with.
          Sometimes there are "unclaimed money" which goes to the Public Trustee but that can be recoverable for the estate.

      •  

        But all the jointly owned property is kept out of the estate, is that correct?

        •  

          my years in stockbroking says yes. If you had any joint share holdings / cash accounts etc, the rules were that you open a new account in your own name, provide a death certificate, and the holdings a transferred into your new account. Something about survivorship law. Dunno if thats real law though. I understand its that way for real estate also.

      •  

        When there's no Will, there's no way (of getting everything)?

  •  

    What's generally the amount of assets in which setting up a family trust or other vehicle makes sense to try and get around passing assets via a will and/or to avoid the Succession Act?

    • +3 votes

      It's more to do with what assets you have as oppose to the value of your assets.If you have alot of incoming product assets (such as a business or investment property) the a family trust or testamentary discretion trust may be more suitable from a tax and asset protection point of view.
      however if you only own a $1million dollar home and no other assets, a trust may not be appropriate as you can lose the capital gains tax exemption once the property is transferred to the trust.
      Best to sit down with a lawyer so they can understand your circumstances before preparing your Will.
      Hope that makes sense.

  • +2 votes

    What do you suggest is the bare minimum will situation for a cost conscious OzBargainer (e.g. no will, will kit, lawyer written will) and why?

    • +1 vote

      I got mine done at Public Trustee https://www.pt.qld.gov.au/wills/about-wills/

    • +2 votes

      I always recommend that people go see a lawyer about preparing a Will as oppose to doing it themselves. The real value comes from the legal advice you receive to determine how best to deal with your assets when you pass away.
      Also, some people aren't aware of the formalities of a Will which can cause huge implications if the Will is deemed to be invalid.

      • +2 votes

        Just to second this - anyone can challenge any Will. So then the validity of the Will will be examined. If a Will has been self-drafted, it is easier to call its validity into question.

  •  

    What's the going rate for a couple to do wills and powers of attorney?

    • +2 votes

      For simple Wills - I'm seeing somewhere between $500 - $700. and for Enduring Power of Attorney documents - between $200 - $300. You can use teh Power of Attorney forms from the government website though which is pretty straight forward to complete.

  •  

    Is there a way to transfer an aging parents assets into a trust that benefits them, but doesn't affect their aged pension, with the aim of having no assets in their name.

    •  

      What assets are you referring to? Property?
      A few general points:
      - If you transfer their home to a trust then you lose the capital gains tax exemption. They will also need to pay stamp duty and transfer fee when they transfer the home to a trust. This is not a viable option.
      - Even if you transfer assets to a trust for their benefit, most likely they will need to disclose the benefit to Centrelink.
      - centrelink will most likely ask them what happen to all their money if they have transferred it out of their name - my understanding is that they generally take the view that you have sold the asset and therefore should have the money somewhere.
      - Best to speak to Centrelink about what's acceptable and what isn't

  • +1 vote

    Why does it take the public trustee such an infernally long time to sort out estates? We've been waiting well over the required 12 months but they won't release the estate since they need to ascertain if the deceased was of sound mind. Problem is it's taking ages for them to do anything about it. Are they getting funds from the estate while they sort it out?

    • +2 votes

      Don't most government department take a long time to do things? lol but yes, I've heard they do take ages to administer an estate. there could be a number of reasons for the delay though - In Qld, one of them is that it's generally not advisable for executors to make distributions to the beneficiaries within the first 6-9 months from the date the person passes away otherwise the executor can become personally liable for the wrongful distribution of the estate especially where someone contests the Will (i.e. make a family provision claim).
      In relation to the sound mind situation, my view is that if nobody has disputed/contested the Will and it meets all the formal legal requirements then the Will is valid. I'm not sure what else the PT are looking into to prove if the decease was of sound mind.
      If you are concerned that the PT are getting funds from the estate, you should ask them directly and a copy of the itemised bill to see what work they have done.

  • -1 vote

    My elderly mother is in the UK.

    Won't bore you with the details, but if I wish to contest her will, can I engage an Aussie lawyer or must it be a UK one?

  •  

    How do I specifically exclude a family member from the will?

    • +6 votes

      In the same vein, can you bequeath vexatious items to people you don't like?

    • +2 votes

      If you exclude family members from your Will, you can state in your Will why you have left them out. alternatively, you can state your reasons in a separate document like a "statement of wishes" or a statutory declaration. This essentially gives your executor guidance as to why you have left them out.
      Please note: excluding family members does not prevent them from challenging the Will. However not all family members have the right to make a claim against the estate.

      •  

        I think you can give them a dollar in the will to prove that you did give them thought when you wrote the will?

        Not sure about Australia, but I read that it works in the US

  •  

    How does the government authority calculate (eg Public Trustee) how much it will charge to settle one's matters should one die intestate?

    •  

      I am not certain but I believe that will generally provide you with an estimate before they start the work and it's usually based on a set hourly rate.

    •  

      Public trustees publish their fees on their respective websites, which is usually a fixed percentage (1-5%) of the gross estate value.

      Solicitors are allowed to charge on an hourly rate but generally private executors require a remuneration order from the court to take a commission- which varies state to state

  •  

    Is there anything to look out for if using a purchased-from-a-newsagent will form so the signed will is made as uncontestable as possible?

    • +2 votes

      Any Will can be contest after you pass away. The question is whether that person has a valid claim against your estate.
      Newsagent purchased Will are fine so long as your estate is simple.
      However I always recommend people to seek legal advice and have a lawyer prepare the Will. the value is in the advice that is given to you.

        • +1 vote

          This is not the best advice from the Solicitor.

          The problem with newsagent wills is Not the actual paper or the words printed on it.

          Its the drafting that people do that causes all the problems. A very common one is giving all the property to 1 person and then giving some property to other people. So which clause is valid? So then the court has to go back and try to re-draft the will that accurately reflect the parents wishes.

    • +2 votes

      The easiest way to make a will uncontestable is to pass your assets in a way that doesn't go via the will at all.

      •  

        But then you may have to pay stamp and CGT, etc.

        It sounds like a clever idea, but like most "clever" ideas people hear it fails in implementation.

        •  

          It's actually a very common thing that's done all the time. Sometimes there is a cost involved (say, if you're transferring shares from a single name into joint names) but often not.

          Holding assets in joint names.
          Binding nominations on your super.
          Investment bonds.
          Gifting assets whilst still alive.

          Like everything, it just comes down to individual circumstances as to what you can do.

          •  

            @YTW:

            Like everything, it just comes down to individual circumstances as to what you can do.

            And comes down in getting good advice.

            For example some states allow you to transfer your property to your spouse with no stamp duty, others do not.

            Also I will note that holding assets in both names is a poor asset protection strategy and Gifting whilst still alive can still be reversed (as its usually done too late).

            At the end of the day some good advice can help your children (for example: child who has children -> TDT = significant savings in tax)

  •  

    What protection do consumers have if they buy a lemon property, eg like whats happened at Opal Tower

    • +2 votes

      You need to look at the terms of the contracts - there are certain warranties the seller makes about the property. If they are in breach if those warranties (and you have already taken possession of the property), you may able to to institute legal proceeds against them. Although you may only be award some form of monetary damages or compensation.

      If you are buying a existing property, most contracts have a "building and pest inspection" condition which allows you the opportunity to inspect the property first. If you discover defects to the property after settlement, it would be difficult to make a claim against the seller.

  • +2 votes

    Asking for a friend. She's pregnant and her boyfriend wants to move into her place which she owns. The boyfriend has a 4 year old daughter from a previous relationship and shares custody with his ex. Would the bf (and his daughter) have any claim on the property if something were to happen to my friend?

    • +1 vote

      No clear cut answer here. Depends if over time the boyfriend contributed to mortgage (if there is a mortgage), depends if the boyfriend if financially dependant on your friend etc.

    • +2 votes

      Yea, just like chumlee said "no clear cut answer" and depending on all those factors mentioned. Generally, if he is considered as "de facto spouse" as defined under the legislation, he is likely to make a family provision claim against the estate (i.e. challenge the estate to get something). this all depends on how long they've been together etc. His daughter would not have much of a claim as step children generally can't make claims.
      I would recommend:

      1. Enter into a Binding Financial Agreement;

      2. A contract to make a Will. This is essentially both of them preparing the Wills at the same time and enter into a contractual agreement that if either of them pass away and the surviving person changes their Will, that person becomes in breach of the contract and the deceased person's estate can sue for a breach on contract.

      • +3 votes

        If the step-daughter is living with them (even part time), doesn't she then become a dependent of the GF too? I thought that any dependent could make a claim on a will of that person?

        •  

          He has his daughter 7 days a fortnight.

        • +1 vote

          I just saw these replies and then checked the Qld law position - sorry, you are correct. A step child could make a claim as a child (as teh definition includes step children) or as a dependent. but the spouse is likely to have a high chance of making a claim than his daughter.
          Also, making a claim for a death benefit of someone's super is different though. A step child can't make a claim as "child" of the deceased but may make a claim if they are financially dependent of that person.
          Sorry for the confusion.

      •  

        I got a bit side-tracked , sorry :( But back to my friend, the situation is a little more complicated in that she currently only owns 45% of her property. My wife and I own the other 55%. Our intention was always to sell it to her at a pre-agreed price once she was back on her feet and could afford the mortgage, which is currently the case.

        The 2 options she's considering are:

        • to buy our share of the property and enter into a BFA with her baby daddy before allowing him to move in.

        • not buy us out for another couple of years and we rent out our share of the property to the boyfriend.

        This is a new relationship and she's unsure of his intentions and does not want to find herself worse off financially than she is now , especially with a baby on the way. The bf has a high maintenance ex, a dependent who is attending a private school and a failing business. For what it's worth , I believe he's a good man but I'm not the one who risk losing half of my property if it turns out that I'm wrong…

        We're happy to do what's best for my friend and her unborn child. What would be the better option?
        Thank you.

    •  

      Even without de-facto partner status the BF could make a claim on any superannuation and death benefit - unless the GF has made a binding nomination that has been regularly renewed her super will go to whom ever the super company decides not necessarily who she wants.

      •  

        He's a good guy and his feelings for her appear genuine. They will end up getting married and a pre-nup is the way to go.

        •  

          Pre-nups aren't are barely worth the paper they're written on.

          • +1 vote

            @HighAndDry: Incorrect.

            Most BFAs (pre-nups are US) can stand up in a court of law. Unless the person who wants protection does silly things for example:

            ~ Demanding the bride sign the document on the day of the wedding, with all the wedding guests travelling from overseas or if no signature calling the wedding off - the court ruled that was (Obviously) unfair.
            ~ Another one was a foreign bride who had limited English signing a bfa and not understanding it.

            If people actually bothered to follow the procedures laid down by the courts (on advice from a Solicitor), then a bfa is a valid legal document that can provide strong protection.

            I will make a final point - you only hear about the unsuccessful cases (get media attention) you don't hear about the successful cases (where Solicitors advise their client not to take it to Court because they would lose, or they settle for a trifling amount), hence there can be a perception that they fail easily when this could be completely untrue.

            • -1 vote

              @IHatePeople:

              If people actually bothered to follow the procedures laid down by the courts (on advice from a Solicitor), then a bfa is a valid legal document that can provide strong protection.

              Lol.

              •  

                @HighAndDry: Ok don't follow them.

                As the court has ruled there is now legal precedent.

                But hay of course you may think its fair that someone with no English is being forced to sign a bfa without a solicitor a day before their wedding day. I think its pretty stupid. Some say potatoes, others say potatoes….

                POTATOES!!!!

          • -1 vote

            @HighAndDry: If pre-nups are barely worth the paper , what would be the best way to protect her asset?

            •  

              @Jar Jar binks: Structuring how the assets are held in the first place.

                • +1 vote

                  @Jar Jar binks: Christ how did you and your wife let yourselves get dragged into this mess? Her portion will definitely be subject to the Family Law Act if he moves in.

                  • +1 vote

                    @HighAndDry: My wife met her when she was a social worker.She was one of those kids that fell through the cracks of the system and no one cared about. The missus took her under her wing and she moved in with us for a bit while she was completing her schooling. A couple of years later, her brother and her inherited their grandma's house and we bought him out.

                    We renovated and managed the property while she put herself through uni.
                    We're very proud of who she's become and all she has achieved :) So, no regrets.

                    What if she was to move in with him instead? He's currently renting. Would he still have a claim on her share of the property?

                    • +1 vote

                      @Jar Jar binks: Oh, I guess that's as good a reason as you could possibly have.

                      Okay, so this is not legal advice, because there are so many factors that are involved. BUT - if he's not living in it and the property was acquired before they became a couple, that makes it generally safer. It's not 100%, the Family Law Act gives courts a lot of leeway to make orders, but it would be more protected.

    • +5 votes

      Why did I get negged? When prince charming is a pauper you've met on tinder , is it so wrong to want to protect your assets? Everyone wants a happy ever after but unfortunately very few gets it.

  •  

    Do Estate Planning lawyers give advice as well about financial issue as well, for example death tax?

    • +1 vote

      To some extent they do. We usually make client's aware of certain tax implications that may arise upon their death or if their assets are structured in a particular way. We also tend to worth with the client's accountant or financial advisers as well to understand the tax consequences.

    •  

      There is no estate tax in Australia.

      • +2 votes

        Interestingly there sort of is.

        If you die and have super, and lets just say you leave it to your children, who are adult age and working ie NON Dependant. The funds from super are taxed.

        Not a death tax per se, but still a tax on receiving funds from someone who has died.

        Gotta love super, Australian tax laws…..Not.

  •  

    Parents bought a house and decided to stay at their current house instead so we are taking it over. Ppor and that house is both under mums name. Is it better for me to pay the stamp duty now and transfer it to my name, or for her to pass it on to me in her will?

    • +2 votes

      For the house that mum owns but she is not living it, it is not considered a PPOR and she is likely to pay Capital Gains Tax (or loss) upon her disposing the property, whether it before or after her passing.
      If you live in Qld and this house if your first home and is less than $550,000.00 than you won't need to pay stamp duty (First Home Owners Concession). You will have to pay transfer fee though.
      If she is gifting you the house now and you also have other siblings, they may feel like they won't receive a equal share of her estate if she passes away. Something to be aware of.

      •  

        Thanks for responding! It is a little complicated, she bought that house mid last year to move to but couldn't sell her ppor, so I'm selling my current home and taking that house, she's never rented out that house. But it will be my ppor once we move in, does that make a difference?

  •  

    How do people with disabled (but adult) children provide for them in their wills? I have a 19 year old son with autism who is under the NDIS. I have always put off doing a will because I didn't know how to address this issue. I have two other children who have graduated uni and have jobs.

    Thanks

    •  

      HI Voiletmay, depending on the size of your estate and what you will be gifting to your children, you should consider a Special Disability Trust set up for your son provided that he meets the requirement of having a SDT. But generally, the benefits of an SDT are:

      • that a gifting concession of up to $500,000 combined is available for eligible family members of the principal beneficiary and
      • that an assets test assessment exemption of up to $669,750 (indexed 1 July each year) is available to the principal beneficiary

      Some general information here https://www.humanservices.gov.au/individuals/services/centre...

      It essentially allows you to gift a certain amount to him in the trust without affecting his centrelink entitlements (I'm not sure about NDIS though as I'll need to look into it).

      usually an executor or someone else will manage that trust (the trustee) with the funds to be used for your son's benefit.

      If your son does not qualify for a SDT, you may leave specific directions in your Will as to how certain amounts of money you leave behind for you son is used towards his care etc.

      My recommendation is for your seek legal advice and financial advice on the options avaiable as it is a fairly complex area. Happy to assist you if need be.

      •  

        Thank you so much for you reply. A lot to think about. Definitely don't want anything to affect Centrelink.

  •  

    Thank you for doing this.im in situation whereby I have no family in Australia.
    I have just bought a house, have shares and smsf.
    My parents are in 80s,live in Ireland alone. None of 3 siblings live in Ireland either.
    If I die and my parents are still alive I want them to have access to the proceeds of my estate for any care they need until they are both deceased. And I want to leave a percentage to my siblings.
    The reason I don’t want parents inheriting it is because then it will go to my siblings when they die and I want the majority of my estate to go to charity eg fred hollows, I’ve been very open about this. Whilst one sister thinks I should leave my money to our USA based nieces and nephew for college I think that’s the responsibility of our other sister and her husband . So how do I do this?
    This is a really informative thread so again sincere thanks 🙏.

    • +1 vote

      Sorry for the late reply.

      You can make an conditional gift of your estate to allow for the care of your parents until they both pass away. Upon the death of the final person, the residuary estate to be donated to the charity of your choice.
      And yes, you can make a specific gift for a certain amount to your siblings at the same time as well.
      I would recommend that you see a lawyer to have those terms properly drafted up.

      For your SMSF - you will need to look at making a bind death nomination. if you have an accountant managing your SMSF, please contact them and ask them about this.

  •  

    Is inheritance (shares and property) subjected to capital gains tax? Are investment properties treated differently than their principal place of residence? If capital gains tax apply are they calculated from the date of death or when the assets were first purchased by the deceased?

    •  

      Is inheritance (shares and property) subjected to capital gains tax?

      Yes. Not sure on the rest.

      •  

        I think you'll find that CGT doesn't apply until the assets are sold. If shares are inherited, you also inherit the cost base, which is used to calculate CGT upon sale. With PPOR, it is my understanding that no CGT is payable by the estate and the person inheriting the property has a cost base of the value of the property at the date of death of the original owner.

    • +1 vote

      Yes, shares and property can be subject to CGT. An investment property is a CGT asset (unless it was purchased before 1985) and upon disposal of that property, the estate will need to pay CGT. my understanding is CGT is calculate from teh date it was first purchased by the deceased. If you transfer the investment property to a beneficiary, they take on the CGT obligation.
      For principal place of residence, it will be exempt from CGT if it is sold within 2 years of the date of the person's death.

  •  

    How often are wills challenged and how often are those challenges successful?

    Is there a way to exclude someone from a will in that they won't see a cent?

    •  

      How often are wills challenged and how often are those challenges successful?

      The NSW Supreme court is basically paid for by the Wills & estate division.

      Is there a way to exclude someone from a will in that they won't see a cent?

      Based on outcome Yes, but its not easy. At least a Solicitor can put your wishes in a will.

      •  

        Why is it not as easy as saying John is not to receive a single cent from estate?

        • +1 vote

          Because (in a lot, not sure if all) States, if the Supreme Court thinks the will is unfair, they can basically ignore it and order the assets distributed "fairly" as they see it.

      •  

        That doesn’t make sense - the Court doesn’t charge estates for contesting wills and the filing fee is a fraction of what it costs to take a matter to a final hearing.

        You may mean the Probate filing fee, which is not related to will disputes or family provision.

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