Most people put off estate planning until a health scare or a family change forces the issue. By then, the documents that protect a family — no, let's say this plainly: a will, an enduring power of attorney and an advance health directive sit unsigned in a drawer, or do not exist at all. For families in Springfield, Ipswich and across Greater Springfield, that gap can mean the difference between a straightforward estate and a drawn-out, costly dispute.
Estate planning is not just for the wealthy or the elderly. It is for anyone who owns property, has children, runs a business or simply wants to choose who makes decisions if they cannot. Queensland succession law sets out who receives a person's estate when there is no valid will, and the order it follows does not always match what a person would have chosen, according to the Queensland Public Trustee.
Our lawyers in Springfield help clients across Greater Springfield and Ipswich with estate planning, from straightforward wills to testamentary trusts and powers of attorney.
Here is how estate planning generally works in Queensland, and what the key documents involve.
Key takeaways
- Dying without a valid will means Queensland succession law decides who inherits.
- An enduring power of attorney continues to operate even if the person loses capacity.
- Marriage revokes an existing will unless it was made in contemplation of that marriage.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
What does estate planning actually involve in Queensland?
Estate planning is the process of deciding what happens to a person's property, finances and health care if they die or lose the ability to make decisions. In Queensland, a complete estate plan generally covers four documents: a will, an enduring power of attorney, an advance health directive, and, for some families, a testamentary trust set up within the will, according to the Queensland Public Trustee.
A will sets out who receives a person's assets and who is responsible for carrying out those wishes, a role called the executor. An enduring power of attorney appoints someone to manage financial and, in some cases, personal decisions while the person is still alive but has lost capacity. An advance health directive records binding directions about future health care. Each document serves a different purpose and operates at a different point in a person's life.
Queensland succession law does not automatically protect a spouse or children if none of these documents exist. A person who dies without a valid will dies intestate, and the Succession Act sets out who inherits, from spouse and children down to first cousins, according to the Queensland Public Trustee. That order does not account for blended families, estranged relatives or informal arrangements.
What happens if there is no will in Queensland?
Without a valid will, Queensland's Succession Act governs who inherits, regardless of what a person may have intended. The Queensland Public Trustee describes the order of distribution as: first, a spouse or de facto partner and any children; then parents; then brothers and sisters; then nephews and nieces; then grandparents; then uncles, aunts and cousins. No estate can pass to relatives more remote than first cousins.
Several groups are excluded entirely from this order. In-laws, stepparents and stepchildren are not recognised as next of kin under the intestacy rules, according to the Queensland Public Trustee. A stepchild who has lived with the family for years receives nothing unless they are named in a will or unless a family provision application is made to the court.
A de facto partner has the same rights as a spouse on intestacy, provided the relationship was continuous for at least two years ending on the death, according to the Queensland Public Trustee. A partner of less than two years may need to pursue a family provision claim instead.
The survivorship rule also applies: a beneficiary must survive the deceased by at least 30 days to share in the estate, according to Queensland's Succession Act.
What are the time limits and rules around contesting a will in Queensland?
- › Who may apply: a spouse, child or dependant of the deceased may apply for a family provision order under Queensland's Succession Act if adequate provision has not been made for them.
- › Notice to the personal representative: written notice of an intended application is generally given within six months of the date of death, according to Queensland's Succession Act. An executor who distributes after that point without receiving notice may be protected from a later claim.
- › Filing deadline: proceedings must be started within nine months of the date of death, according to Queensland's Succession Act. Applications made after that point require the court's leave, which is discretionary.
- › Marriage and divorce: marriage revokes an existing will unless it was made in contemplation of the marriage, according to Queensland's Succession Act. Divorce revokes gifts to a former spouse and their appointment as executor, as if the former spouse had died first.
- › De facto and civil partnerships: ending a de facto relationship has the same effect on a will as divorce, according to Queensland's Succession Act.
- › Separation only: for a married couple, separating without divorcing does not revoke a will, according to the Queensland Public Trustee. An estranged spouse remains entitled to gifts left to them unless the will is changed or a divorce order takes effect.
How does a solicitor help with estate planning in Queensland?
A solicitor works through the full picture of a person's assets, family structure and wishes before drafting any document. For many clients that means asking questions a person has not considered: what happens if a beneficiary dies before them, whether a testamentary trust would protect a child's inheritance, or whether the executor they have in mind has the skills and availability to take on the role.
Our wills and estates solicitors prepare the documents, ensure each one is signed and witnessed correctly under Queensland law, and store the originals safely. They also advise on when a plan needs updating, because a will that was appropriate ten years ago may not reflect a changed family, a new property or a business acquired since.
The Queensland Public Trustee notes that major life events, including marriage, divorce, starting or ending a de facto relationship, a death in the family, an inheritance, buying property or significant business changes, are each a reason to review the whole plan.
Step 1: Talk to us
Get in touch and we will explain how estate planning generally works and what documents are relevant to a particular situation.
Step 2: Review the full picture
We review assets, family structure, any existing documents and the client's wishes, and identify any gaps or risks in the current position.
Step 3: Prepare the documents
We draft the will, enduring power of attorney, advance health directive and any testamentary trust provisions, and arrange for each to be signed and witnessed correctly under Queensland law.
Step 4: Advise on keeping it current
We advise on when to review the plan and flag any life events that are likely to affect the documents already in place.
| Get in touch Need help with estate planning? We're an experienced team who keep you well informed at every stage of the process. Get in touch to discuss your needs. |
When does estate planning NOT apply to a particular situation?
Not every asset passes through a will, and understanding this distinction matters. Property held as joint tenants passes automatically to the surviving owner on death, regardless of what a will says, according to Queensland's Land Title Act. Super is another common area of confusion: a will does not automatically cover superannuation, according to Moneysmart. Whether super forms part of the estate depends on how the death benefit nomination is structured with the fund.
Assets held in a family trust also sit outside the estate in most cases. The trust deed, not the will, determines what happens to trust assets, according to Moneysmart. This means a person with significant assets held in a trust may find that their will, however carefully drafted, does not deal with most of what they think of as their wealth.
Estate planning also does not cover decisions a person wants to make while they are still alive and have capacity. Those decisions are dealt with separately, through the everyday management of finances, not through an estate plan. The enduring power of attorney and the advance health directive address the gap between having capacity and death, but they are distinct documents with distinct purposes.
What are the key documents and what does each one do?
The following documents each serve a different purpose in a complete Queensland estate plan:
- › Will: sets out who receives the estate and appoints an executor to carry out those wishes. Must be in writing, signed in the presence of two witnesses over 18 who should not benefit under the will, according to the Queensland Public Trustee. A family provision application can be made even where a valid will exists.
- › Enduring power of attorney: appoints one or more attorneys to manage financial and personal decisions while the person is alive. Unlike a general power of attorney, it continues to operate even if the person loses capacity, according to the Queensland Government. It operates for financial decisions from the time the document specifies, and for personal decisions only when the person lacks capacity.
- › Advance health directive: records binding directions about future health care and may appoint a health attorney. It operates only when the person lacks capacity for the health decision in question, according to the Queensland Government. Without one, decisions pass to a statutory health attorney, usually the spouse first, then an unpaid carer or close friend or relative.
- › Testamentary trust: a trust created within the will that starts at death, managed by a trustee for beneficiaries. Commonly used where beneficiaries are under 18 or may struggle to manage a large inheritance, according to Moneysmart. The will can set up a discretionary trust, where the trustee decides who receives income or capital, or a contingent trust, where the beneficiary becomes entitled on meeting a condition such as reaching a set age, according to the Queensland Public Trustee.
- › Guardian for children: a will can nominate a testamentary guardian to make decisions about long-term care, education and health for children under 18, according to Legal Aid Queensland. The appointment only takes effect in accordance with Queensland's Succession Act, and existing parenting orders and the other parent's rights are also relevant.
"An estate plan is not just a set of documents. It is a decision about who makes choices on your behalf when you cannot, and who benefits from a lifetime of work. Getting those decisions in writing is what makes them count."
Jade Kickbusch, Principal, Brookwater Legal
Frequently Asked Questions
Who can make a will in Queensland?
Any person aged 18 or over with testamentary capacity can make a will in Queensland, according to the Queensland Public Trustee. The Queensland Government also says independent legal advice is recommended before making an enduring power of attorney.
Does a will cover superannuation in Queensland?
Not automatically, according to Moneysmart. Whether super forms part of the estate depends on the death benefit nomination held by the fund. A binding nomination directs the fund to pay a nominated beneficiary, bypassing the will entirely.
What happens to a will after marriage in Queensland?
Marriage generally revokes a will, except for gifts to or appointments of the new spouse, according to Queensland's Succession Act. A will made in contemplation of the marriage is not revoked. Reviewing a will after any major relationship change is recommended.
What is the difference between an enduring power of attorney and an advance health directive in QLD?
An enduring power of attorney appoints someone to make financial and personal decisions; an advance health directive records binding directions about health care, according to the Queensland Government. Both operate when capacity is lost, but they are separate documents serving different purposes.
Can a will be challenged in Queensland after probate is granted?
A family provision application can generally be made within nine months of the date of death, according to Queensland's Succession Act, regardless of whether probate has been granted. Applications after that time require the court's leave.
Do you need a solicitor for estate planning in Springfield or Ipswich QLD?
A solicitor can prepare documents that reflect the full picture of a person's assets, family structure and wishes, and ensure each is signed correctly under Queensland law. The Queensland Public Trustee also prepares wills at no cost, though a solicitor's advice covers the broader plan including powers of attorney and trust structures. Brookwater Legal's wills and estates team acts for clients across Greater Springfield and Ipswich.
How often should an estate plan be reviewed in Queensland?
The Queensland Public Trustee recommends reviewing a will after major life events including marriage, divorce, a change in de facto relationship, a death, an inheritance, buying property or significant business changes. A review every two to three years is also suggested for enduring powers of attorney, according to the Office of the Public Guardian.
Your Next Steps
An estate plan that reflects a person's actual wishes, assets and family situation is not a luxury. For families in Springfield and Ipswich, the cost of not having one, whether that is a contested estate, an unwanted intestacy outcome or a delay in accessing funds, can far outweigh the time it takes to put the right documents in place. Queensland law is clear on the formalities, but it cannot substitute for the decisions only a person can make about their own life and family.
Every estate planning matter is different, and that's exactly why it's worth a conversation. Make an appointment with the Brookwater Legal team or call (07) 3437 8555.
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External Resources
- Queensland Public Trustee - About deceased estates
- Queensland Legislation - Succession Act 1981
- Queensland Government - Understanding enduring powers of attorney
- Queensland Government - Understanding advance health directives
- Moneysmart - Wills and powers of attorney
- Legal Aid Queensland - Who will look after my children if I die?
Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
