Planning for the future is not always easy to think about, but having properly prepared estate planning documents can make an enormous difference for your family, your assets and your peace of mind.
At OneStop Legal, we assist clients with preparing clear, practical and legally sound estate planning documents, including Wills, Enduring Powers of Attorney and related estate planning advice.
This article explains why these documents are important, what they usually cover, and when you should consider putting them in place or updating them.
What is a Will?
A Will is a legal document that sets out what you want to happen to your assets after you die. In Queensland, succession law is primarily governed by the Succession Act 1981 (Qld). (Queensland Legislation)
A properly prepared Will can deal with matters such as:
- who receives your assets;
- who will act as your executor;
- gifts of specific items or money;
- provision for children or dependants;
- what happens if a beneficiary dies before you;
- funeral wishes;
- guardianship wishes for minor children; and
- whether more detailed estate planning structures are needed.
Without a valid Will, your estate may be distributed under the rules of intestacy rather than in accordance with your personal wishes. That can create unnecessary stress, cost and uncertainty for your family.
Why is a Will important?
A Will allows you to make your wishes clear. It can reduce the risk of disputes and help your executor administer your estate more efficiently.
For example, a Will can help answer important questions such as:
- Who should receive your home, savings, personal belongings or business interests?
- Who should be responsible for administering your estate?
- What happens if your spouse, partner or child dies before you?
- Should children receive their inheritance at a particular age?
- Are there vulnerable beneficiaries who may need special protection?
- Are there blended family issues to consider?
- Could there be a risk of a family provision claim?
Even a simple estate can become complicated if there is no Will, an outdated Will, unclear wording, or family conflict.
What makes a Will valid in Queensland?
In general terms, a Will should be in writing, signed by the person making the Will, and witnessed correctly. Queensland guidance notes that the Succession Act sets out formal requirements for Wills, including that the Will should be in writing. (Queensland Law Handbook Online)
Because signing and witnessing requirements are important, it is risky to rely on informal notes, handwritten changes, unsigned documents or online templates that have not been properly reviewed.
A lawyer can help ensure the Will is drafted clearly and executed correctly.
What is an executor?
An executor is the person appointed in your Will to administer your estate after you die.
The executor’s role may include:
- locating the Will;
- identifying estate assets and liabilities;
- applying for probate if required;
- paying debts and expenses;
- dealing with banks, insurers and government agencies;
- selling or transferring property;
- distributing the estate to beneficiaries; and
- keeping proper estate records.
Choosing the right executor is important. The person should be trustworthy, organised and capable of dealing with financial and legal responsibilities. In some cases, it may be sensible to appoint more than one executor or a professional executor.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney, often called an EPOA, is a legal document that allows you to appoint someone you trust to make decisions for you during your lifetime if you are unable to make those decisions yourself. In Queensland, an EPOA can cover financial matters and personal matters, including health matters. (Queensland Government)
The Queensland Government explains that an attorney for personal matters, including health matters, can only make decisions when the person does not have capacity to make those decisions. For financial matters, you can decide when the attorney’s power begins. (Queensland Government)
This is different from a Will. A Will operates after death. An Enduring Power of Attorney operates during your lifetime.
Why is an Enduring Power of Attorney important?
An EPOA can be extremely important if you suffer an illness, injury, accident or cognitive decline that affects your decision-making ability.
Your attorney may be able to assist with matters such as:
- paying bills;
- managing bank accounts;
- dealing with property;
- signing documents;
- making health and personal decisions;
- dealing with aged care providers;
- communicating with government agencies; and
- making financial decisions if you no longer can.
The Office of the Public Guardian states that an EPOA allows you to appoint someone you trust to make personal, healthcare and/or financial decisions if you lose decision-making ability, and that you must be over 18 and have decision-making ability to complete one. (Public Guardian Queensland)
Why you should not wait until there is a crisis
Estate planning documents usually need to be prepared while you still have legal capacity.
If a person loses capacity before making an Enduring Power of Attorney, family members may need to apply to a tribunal or court for authority to manage that person’s affairs. This can be stressful, time-consuming and expensive.
Preparing documents early gives you control over who is appointed and what powers they have.
When should you update your Will or Power of Attorney?
You should consider reviewing your estate planning documents if:
- you get married or divorced;
- you separate from a spouse or partner;
- you have children or grandchildren;
- you buy or sell significant assets;
- you start or sell a business;
- an executor or attorney dies or becomes unsuitable;
- your relationship with a beneficiary changes;
- you move interstate or overseas;
- your financial circumstances change;
- you receive an inheritance;
- you enter aged care;
- you have concerns about family conflict; or
- your documents are more than a few years old.
An outdated Will can sometimes be just as problematic as having no Will at all.
Simple Wills, standard Wills and complex estate planning
Not every estate plan is the same.
A simple Will may be suitable where your wishes are straightforward, your family circumstances are uncomplicated, and there are no significant risks or asset protection concerns.
A standard Will may be more appropriate where you need additional clauses dealing with children, substitute beneficiaries, executors, specific gifts, superannuation, property ownership or family circumstances.
A more complex Will may be needed where there are blended families, business interests, trusts, self-managed super funds, vulnerable beneficiaries, overseas assets, tax considerations, significant assets or a desire to consider testamentary trust provisions.
A testamentary trust Will can be useful in some circumstances, but it is not necessary for everyone. Whether it is appropriate depends on the client’s family, assets, risk profile, tax considerations and long-term objectives. Tax and financial advice may also be required.
Common estate planning mistakes
Some common mistakes include:
- not having a Will at all;
- using an online template without legal advice;
- failing to update a Will after major life changes;
- appointing an unsuitable executor;
- failing to consider superannuation;
- assuming jointly owned property passes under the Will;
- not considering family provision risks;
- failing to prepare an Enduring Power of Attorney;
- appointing an attorney without proper thought;
- not telling executors where documents are stored; and
- making handwritten changes to signed documents.
Good estate planning is not just about filling in a form. It is about understanding your circumstances, identifying risks and preparing documents that reflect your wishes clearly.
How OneStop Legal can assist
OneStop Legal can assist with:
- preparing simple Wills;
- preparing standard Wills;
- preparing more complex Wills;
- advice about executors and beneficiaries;
- estate planning for children and blended families;
- reviewing existing Wills;
- preparing Enduring Powers of Attorney;
- advice about attorney appointments;
- guidance on signing and execution requirements;
- estate administration advice; and
- practical guidance for families after death.
Our approach is to keep the process clear, practical and cost-effective while ensuring your documents are properly considered and legally sound.
Final thoughts
A Will and Enduring Power of Attorney are two of the most important legal documents an adult can have.
A Will helps ensure your assets pass according to your wishes after death. An Enduring Power of Attorney helps ensure someone you trust can assist with important decisions during your lifetime if you lose capacity.
Putting these documents in place early can save your family stress, delay and uncertainty later.
For assistance with Wills, estate planning or Enduring Powers of Attorney, contact OneStop Legal to arrange an appointment.
Disclaimer: This article is general information only and is not legal, financial or taxation advice. Estate planning laws and personal circumstances vary. You should obtain legal advice about your specific circumstances and seek taxation or financial advice where required.
Did you know?
If your attorney needs to sign documents or deal with real estate on your behalf, your Power of Attorney may need to be registered with the relevant State or Territory Titles Office before the property transaction can be completed.
In Queensland, you do not usually have to register an Enduring Power of Attorney for it to be valid generally. However, if your attorney needs to deal with land in Queensland, the Enduring Power of Attorney must first be registered with the Queensland Titles Registry using Form 16 and a certified copy of the document.
This can become important when:
- selling a property;
- transferring property;
- signing mortgage or discharge documents;
- dealing with leases or other registered interests; or
- assisting someone who has lost capacity and can no longer sign property documents personally.
A common issue is leaving it until settlement, only to discover the Power of Attorney has not been registered. That can cause avoidable delays, additional costs and stress.
Different States and Territories have their own registration requirements. For example, NSW requires a Power of Attorney to be registered where an attorney intends to deal with the principal’s land, and WA requires the Power of Attorney to be lodged with Landgate before a land transaction is recorded.
Before using a Power of Attorney for a property transaction, it is important to check:
- whether the document gives the attorney power to deal with property;
- whether the attorney has accepted the appointment;
- whether the document has been properly signed and witnessed;
- whether it needs to be registered with the Titles Office; and
- whether registration could affect privacy, as registered documents may become searchable.
OneStop Legal can assist with preparing, reviewing and registering Powers of Attorney for property and estate planning purposes.
Disclaimer: This is general information only and is not legal advice. Requirements can differ between jurisdictions and depending on the transaction. Always obtain legal advice before relying on a Power of Attorney for a property dealing.
