A last will and testament in Queensland is a legal document that states what you would like to happen with your belongings, money, property and any other assets, known as your estate when you pass away. Your will names who you want to receive your estate (your beneficiaries) and who you would like to oversee and administer your estate when you pass away (your executor). A Last Will is often used to communicate essential instructions, such as who will retain custody of children or pets, take over management of a business, and more.
Alternative names for a last will and testament:
- Last Will
- Will and Testament
It is important to have an up to date will that is both accurate and legally correct with no ambiguous language or confusion. Here is what you need to know to create a final will in Queensland.
Do I need a Last Will and Testament?
It doesn’t matter what your situation is – a last will and testament help you communicate your final wishes for those you leave behind. It communicates your final wishes to family and friends about how to distribute your property, money, debts, businesses or family needs.
A will is specifically important for those who:
- Have chronic health issues
- Are reaching an old age
- Have been diagnosed with a potentially life-threatening or terminal illness
- Have a lot of assets that will need to be divided between beneficiaries
If you don’t have a last will in place when you pass away, your estate is divided based on Intestacy Laws (Succession Act 1981 (QLD)), and your property may not end up with the beneficiaries of your choice.
What happens if I die without a Last Will?
When someone dies without a valid last will in place (intestate), their property will be distributed according to Queensland state laws. This results in distribution being dependent on several factors, such as whether or not you had children, were in a relationship, whether that relationship was a marriage or de facto relationship, had any other living relatives, i.e. parents or grandparents, and more.
Because an intestate person’s estate is distributed to their heirs based on Queensland state law, they risk having important instructions overlooked or their estate being divided differently than they would have preferred to divide it. For example:
- Property may be gifted to a person the deceased may not have wanted to include as a beneficiary (such as a husband or wife they have separated from but not divorced).
- If the deceased had children or pets and no appointed legal guardian in writing at the time of death, then someone else could be legally appointed to care for children or pets, other than someone they would have chosen.
- Assets may not go to certain persons like a cousin, aunt/uncle or a child they were in process of adopting.
- Charities the deceased wanted to donate to after death would not get anything (legacy giving)
- Caregivers and close friends would not be entitled to any part of the inheritance unless stipulated in the last will. They would not be able to make a claim to the court regarding inheritance.
Is a Last Will And Testament In Queensland Legally Binding?
For a Last Will and Testament to be considered valid in Queensland there are certain requirements that must be met:
- The Testator was not pressured into creating their last will or into gifting assets to a certain beneficiary (known as Undue Influence).
- The last will was properly executed – being signed and witnessed by 2 witnesses. If the last will is not completed properly, it may be considered invalid and would be at risk of being rejected by Queensland Courts.
- The Testator generally needs to be a legal adult in Queensland.
- The Testator needs to be of sound mind, meaning they have the mental capacity to sign a legal document for themselves.
Keep in mind that, in some instances, even a perfectly valid last will can be contested (i.e. disputed in court) if anyone such as a beneficiary, unnamed heir, executor etc. believes that the last will and testament was not written properly or that the deceased was pressured into changing or signing a will.
Legal Terms Found In a Last Will and Testament
- Executor: Executor, often referred to as a personal representative, is the person who executes the last will and testament for the deceased. They distribute any assets, handle debts, and ensure important instructions are followed, such as instructions to do with child guardianship or the deceased’s final remains.
- Estate: Estate is a person’s total net worth or the sum of their assets (or property) minus any debts or liabilities they may have.
- Testator: Testator is a term used for the person who created the last will and has passed away. In some instances, this person is referred to as the deceased or decedent.
- Liability: Liabilities are also known as legal or financial debts or obligations; this could include credit card debts, mortgages, loans, and more.
- Asset: Assets are anything that has value, such as personal property, money, real estate, and more