Many Queenslanders put off making a will because it feels complicated, or simply because it can wait. But the Queensland Public Trustee's own research shows fewer than half of Queenslanders aged 40 to 60 have one, and without a valid will your estate is distributed under rules set by law, not by your wishes.
Making a will in Queensland is a legal document signed and witnessed in a specific way. It names who receives your assets, who will carry out your wishes as executor, and, where you have children under 18, who will be appointed as their legal guardian. A will made without meeting the legal requirements may not be valid, meaning it cannot be used by the people you intend to benefit.
As a Springfield law firm, we help clients across Greater Springfield and Ipswich with wills, estates and estate planning.
Here is how making a will generally works in Queensland, and what the process involves from start to finish.
Key takeaways
- A will must be in writing and signed before two witnesses over 18.
- Marriage or divorce can cancel a will, fully or partly, under Queensland's Succession Act.
- Without a will, the Succession Act sets who inherits, not the deceased's wishes.
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.
How does making a will work in Queensland?
A will is a legal document that sets out how a person's property and assets are to be dealt with after their death, according to the Queensland Public Trustee. It names one or more executors, the people responsible for carrying out those wishes, and can appoint a legal guardian for any children under 18. To be valid in Queensland, a will must be in writing, signed by the will-maker and dated, with the signature made or acknowledged before two or more witnesses who are present at the same time, according to Queensland's Succession Act.
A witness should not be a beneficiary under the will. There is no requirement to use a particular form or template, but the Queensland Public Trustee recommends naming an executor and keeping the document clear enough that its intentions cannot be disputed. The Public Trustee offers a free will-making service for Queenslanders.
What can a will cover in Queensland?
A will can deal with a wide range of matters, according to the Queensland Public Trustee. It can name beneficiaries for specific gifts and the residual estate, address personal and family items, record funeral wishes, and set out who cares for pets. It can also name a legal guardian for children under 18 to make decisions about their finances, education, health and lifestyle, and appoint an executor the will-maker trusts to manage the administration of the estate.
A will can also set up trusts for beneficiaries, including a child, a person with a disability, or to allow a family member to live in the home. The Queensland Public Trustee describes two common types in this context:
- › Discretionary trust: the trustee decides who receives income or capital from the trust.
- › Contingent trust: a beneficiary becomes entitled once they meet a condition, such as turning a certain age.
- › Life interest: a primary beneficiary receives the full benefit of an asset for life without inheriting it, after which it passes to the remainder beneficiaries.
One important limit: a will can only deal with property the will-maker is entitled to at their death. Property held as joint tenants passes automatically to the surviving owner, and superannuation does not automatically pass under a will unless a binding death benefit nomination directs the fund to pay it to the estate.
When does a will become invalid or need updating?
Certain life events can affect whether a will remains valid, making it important to review one after any major change, according to the Queensland Public Trustee.
The following events can cancel or alter a will under Queensland's Succession Act:
- › Marriage or a civil partnership: generally revokes an earlier will, except gifts to, or the appointment as executor of, the person who became the will-maker's spouse. A will made in contemplation of the marriage is not revoked.
- › Divorce: unless the will shows a contrary intention, a divorce order revokes any gift to the former spouse and their appointment as executor, trustee or guardian, as if the former spouse had died first.
- › End of a de facto relationship or civil partnership: has the same effect on a will as divorce, under Queensland's Succession Act.
- › Separation without divorce: for a married couple, separating without obtaining a divorce order does not revoke a will. The estranged spouse remains likely to receive any gifts left to them.
The Queensland Public Trustee recommends reviewing a will after major financial change, acquiring or selling property, a death in the family, an inheritance, the birth of a child, illness, relocation or a change in any executor or guardian's circumstances.
"A will made before marriage is generally revoked when the marriage happens, and a separated couple who never finalise their divorce may find an old will still operates in ways neither expected."
Jade Kickbusch, Principal, Brookwater Legal
What happens if you die without a will in Queensland?
Dying without a valid will is called dying intestate. The estate is then administered under Queensland's Succession Act, which sets out a fixed order of distribution, according to the Queensland Public Trustee. This order does not take into account the deceased's preferences or informal arrangements made during their lifetime.
The general order of distribution under the intestacy rules is:
- › A spouse or de facto partner, then children
- › Parents, then brothers and sisters
- › Nephews, nieces and grandparents, then uncles, aunts and first cousins
- › If no relatives within this range are found, the estate goes to the Queensland Government
Importantly, in-laws, stepparents and stepchildren are not included in the intestacy rules and receive nothing unless a will provides for them. A de facto partner has the same rights as a spouse on intestacy, but the relationship must have existed continuously for at least two years ending on the deceased's death, according to the Queensland Public Trustee. A beneficiary must also survive the deceased by at least 30 days to share in the estate.
How does a solicitor help you make a will in Queensland?
Step 1: Talk to us
Get in touch and we'll explain how the will-making process generally works and what the next steps look like for your situation.
Step 2: We take instructions and review your circumstances
We discuss the assets, the people involved and any particular wishes, then advise on the best structure for the will, including whether a testamentary trust or a guardian appointment is appropriate.
Step 3: We prepare the will
We draft the will in plain language, checking that it meets the formal requirements under Queensland's Succession Act and that the executor, beneficiaries and any guardian are clearly identified.
Step 4: Signing and safe keeping
We arrange for the will to be signed correctly before two independent witnesses, then advise on safe storage, including whether to keep a copy with our wills and estates team and who should know where the original is held.
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When does a will not cover everything?
Some assets fall outside what a will can control, and understanding these gaps is often the most useful part of estate planning. Three categories commonly catch people off guard, according to the Queensland Public Trustee:
Assets that generally pass outside a will include:
- › Jointly owned property: property held as joint tenants passes automatically to the surviving owner on death, regardless of what a will says. Property held as tenants in common, where each owner holds a distinct share, does pass through the estate.
- › Superannuation: super does not automatically pass under a will. The fund trustee pays it to whoever holds a valid binding death benefit nomination, or decides among eligible dependants if no binding nomination exists. A nomination directing payment to the executor brings the super into the estate, where the will then governs it.
- › Family trust assets: assets held in a family trust belong to the trust, not to the will-maker personally. The trust deed, not the will, governs who controls and benefits from those assets after the will-maker's death.
A well-drafted will takes into account these limits, and a solicitor can identify where a binding death benefit nomination, a review of property ownership or changes to a trust deed may need to accompany the will itself.
What are the common mistakes when making a will in Queensland?
Most problems with wills arise from informal changes made after the original document was signed, or from failing to update after a major life event. Writing changes on an original will, crossing things out or adding notes does not make those changes legally binding, according to the Queensland Public Trustee. The correct approach is either a formal codicil executed with the same formalities as the will itself, or a new will containing a revocation clause.
A second common problem is choosing a witness who benefits under the will. While the gift to an interested witness may be voided under Queensland's Succession Act, the will itself is not automatically invalid. The safest approach is to use two witnesses who are not named in the will and have no interest in the estate. A solicitor identifies these issues at the drafting stage, which is far simpler than resolving them after a death.
Frequently Asked Questions
Does a will in Queensland need to be witnessed?
Yes. Under Queensland's Succession Act a will must be signed before two or more witnesses who are present at the same time, and a witness should not be a beneficiary under the will.
Does marriage cancel a will in Queensland?
Generally yes, under Queensland's Succession Act. Marriage revokes an earlier will except gifts to or the appointment of the new spouse. A will made in contemplation of the marriage is not revoked.
Can a will in Queensland appoint a guardian for children?
A parent or guardian may, by will, appoint a testamentary guardian for a child under 18 under Queensland's Succession Act. The guardian can make decisions about care, education and religion, but does not necessarily become the child's primary carer.
What happens to superannuation when someone dies in Queensland?
Super does not automatically pass under a will, according to the Australian Taxation Office. The fund pays it according to a binding death benefit nomination, or the trustee decides among eligible dependants if no binding nomination exists.
How often should a will be reviewed in Queensland?
The Queensland Public Trustee recommends reviewing a will after any major life event, including marriage, divorce, the end of a de facto relationship, a death, an inheritance, a significant financial change, or a change in who is named as executor or guardian.
Do you need a solicitor to make a will in Springfield or Ipswich QLD?
A solicitor is not legally required, but the Queensland Government recommends getting legal advice to ensure the will is valid and reflects the will-maker's intentions. Our wills and estates team in Springfield assists clients across Greater Springfield and Ipswich with wills and estate planning.
Can a will be changed after it is signed in Queensland?
Yes, but not by writing on the original, according to the Queensland Public Trustee. The correct approach is a formal codicil executed with the same formalities, or a new will that includes a revocation clause cancelling earlier versions.
Your Next Steps
A valid will is one of the most straightforward things a person can put in place to protect their family and reduce the administrative burden on the people they leave behind. For families in Springfield, Ipswich and across Greater Springfield, it also means that property, superannuation nominations and guardian appointments can all be reviewed together, so nothing falls between the gaps.
If making or reviewing a will is on your mind, the next step is a straightforward one. Get in touch with the Brookwater Legal team or call (07) 3437 8555, and we'll talk you through how the process generally works.
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External Resources
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.
