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FAQs: Wills + Estates


FAQs about Wills

What is a Will and why do I need one?

Every adult should have a Will. As you accumulate assets it is a good idea to make sure that they pass to the people you want them to. If you don’t have a Will, an ‘Intestacy’ occurs, and your assets may pass to people you don’t what them to. A Will also provides you with the opportunity to name guardians for your children, establish a trust or donate to a charity.

What is an Executor?

An Executor is the person you appoint in your will to administer your estate. Usually, this person would be your spouse, de facto, partner or a close family member or friend. You can have more than one executor. Sometimes people appoint a professional person such as a solicitor or an accountant or a professional trust company. We can speak to you about the appropriate person for you. 

Who sells the Estate Property?

The executor consults with the beneficiaries and seeks their instructions about the sale of property. Beneficiaries may take a transfer of the property or they may request the executors to sell or auction the property. In some instances though, the deceased may have set out in their Will that they require the sale of assets prior to distribution to beneficiaries. Executors may also need to apply for Probate of the Will before funds in the estate can be accessed and distributed. 

What is the difference between assets held jointly or as tenants-in-common?

Jointly owned assets don’t for part of your estate. They pass by survivorship; to the surviving spouse or co-owner. Assets held by you as a tenant-in-common pass under your Will to your nominated beneficiaries. 

Where should I keep my Will?

A Will should be kept in a safe place. We offer a free storage service to our clients and recommend our clients leave their original Will in our fire-proof safe and to tell someone you have done this. 

How often should my Will be revised or updated?

Making or altering your Will is particularly important when life circumstances change. It’s a good idea to review your Will every 3-5 years to ensure that it reflects your wishes. You definitely need to review and possibly change your Will if you: get married, divorced or separate, enter into a de facto relationship, children or grandchildren are born, a beneficiary dies or your executor dies, there is a change in your financial circumstances. 

What happens to any debts I owe if I have a Will?

Funeral and estate administration costs must be paid first. All other debts are then paid. Then distribution of the remaining estate can be made. If there isn’t enough money in the estate to pay debts, they are paid proportionately from the available funds. Debts are not passed onto families or beneficiaries. 

Who can contest my Will?

A spouse, a de facto, a child (biological, step-child or adopted) or a personal financially dependent on the deceased may contest a Will. 

Can people contest my Will if I leave them a Bequest?

Yes, they may still have the right to contest the Will if they feel they are entitled to a larger share of the Estate. These disputes often require an application to the Supreme or District Court for determination. Specific matters must be proved for applications to succeed. 

Will getting Married or Divorced affect my Will?

Your Will is revoked or cancelled if you get married - unless your Will is states that it is specifically made in contemplation of marriage. Divorce revokes any provisions in the Will in favour of your former spouse including appointments as an executor or guardian, but other provisions for example, for children, may still apply. 

Why have O’Shea Dyer Solicitors prepare your Will?

We have experienced lawyers who can advise and draft your Will and all other estate planning documents. We make the process as simple and affordable as possible. 

FAQs about Enduring Power of Attorney or General Power of Attorney

What is a General Power of Attorney?

A General Power of Attorney is a legal document that allows you to nominate one or more Attorneys to act on your behalf for financial matters only. The Attorney’s power ceases if for any reason you lose the capacity to manage your own affairs. A General Power of Attorney is typically used to give someone specific authority in commercial transactions or to pay bills while you are overseas. 

What is an Enduring Power of Attorney?

Unlike a General Power of Attorney, the powers under an Enduring Power of Attorney continue even if you lose the capacity to make decisions for yourself. An Enduring Power of Attorney allows you to give your Attorney the power to make financial decisions and also personal and/or health decisions. 

Why should I make an Enduring Power of Attorney?

If you are 18 years of age or older you should make an Enduring Power of Attorney. If there comes a time when you are unable to manage your own affairs, it may be too late to make your wishes clear to those who will care for you. The best way to provide peace of mind is to legally appoint someone now to manage your financial and personal/health matters in case you are unable to do so yourself in the future. 

What would happen if I lost capacity and didn’t have an Attorney to act for me?

If there are matters that require formal authority, or if there are disagreements between your family members, an application may need to be made to the Queensland civil and Administrative Tribunal for the appointment of an Administrator and/or Guardian. There is a risk that the person or organisation appointed (eg. The Adult Guardian) is someone that you do not want looking after your matters. 

What are my Attorney’s responsibilities?

All Attorneys must act with honesty and care. In exercising their power they must recognise your right to confidentiality and dignity; respect your views and take into account any existing relationships, values and culture. You can nominate one or more Attorneys to be both your Financial Attorney and Personal/Health Attorney, or you can nominate different people for each role. 

A Financial Attorney is responsible for your financial matters including paying bills, receiving income, taxation and legal matters, investment and financial planning and property management. A Financial Attorney must keep records of dealings and transactions, keep your property separate from their property unless it is jointly owned and avoid transactions that conflict their interests with yours. 

A Personal/Health Attorney is responsible for making decisions in relation to where you live, who you live with, daily issues like diet and dress and giving approval for you to receive certain types of health care. A Personal/Health Attorney must take into account the advice of your Doctor or health care provider, ensure that any decision made contributes to your health and wellbeing and must choose the least intrusive treatment when there is a choice. 

Who should I appoint as my Attorney/s?

It is very important to choose people that you trust as decisions they make on your behalf are legally binding. They should be 18 years or over. If you have a carer who receives a carer’s pension or a similar government benefit, they may be the right person to appoint. They should not be a doctor or nurse or anyone who is paid to care for you. 

Financial Attorney

For personal and health care matters it is important to choose a close family member or friend who is aware of your personal and health care needs and wishes. If there is no one available, the Adult Guardian can be appointed to look after the interests of people with impaired capacity. The Adult Guardian is an independent statutory officer. 

What power would my Attorney/s have?

Your Attorney/s will be able to make any decisions that you can make for yourself unless you provide specific limitations in your Enduring Power of Attorney. 

What should I do if an Attorney is not acting properly?

Anyone who suspects that the Power of Attorney is not being exercised properly can inform the Adult Guardian. The Adult Guardian has the power to protect your interests if you are unable to do so yourself. Your Attorney may be required to provide accounts and details about any decisions that have been made. An Attorney who does not protect your interests adequately can be replaced. The Adult Guardian can be contacted by phoning 1300 653 187 or emailing: adult.guardian@justice.qld.gov.au or publicguardian@publicguardian.qld.gov.au 

When does the Enduring Power of Attorney begin?

Financial Matters: You specify when you want to powers of your financial attorney to begin. This could be immediately, on a particular date or on a particular occasion such as if you lose capacity. We can help you clarify the clauses you will need to put in place for your particular situation. 

Personal/Health Matters: Decisions about personal/health care matters will remain in your hands unless for some reason you lose the ability to make such decisions and to communicate them. If there does come a time when you need the assistance of your attorney/s to make personal and health care decisions, they are still obliged to help you make decisions yourself to the fullest extent possible. 

When does the Enduring Power of Attorney cease?

There are a number of situations under which an Enduring Power of Attorney may cease to be effective. These include: 

  • If you get married (unless your new spouse is already your Attorney) 
  • If your Attorney withdraws 
  • If you die or your Attorney dies 
  • If you get divorced (any provision made to your former spouse is revoked) 
  • If you revoke your Enduring Power of Attorney 
  • If your Attorney becomes your paid carer or health-care provider 
  • If your Attorney becomes incapable 
  • If your Attorney becomes insolvent 
  • If you make an inconsistent document (the Enduring Power of Attorney is revoked to the extent of any inconsistency with any later document you complete). 

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InfoSheets

We have attached the above FAQs above into two downloadable documents for your convenience. You are welcome to download these InfoSheets and them read at your own leisure.

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