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Wills & Estates FAQs

Protect your family's future with experienced Wills and Estates advice. Our Southport lawyers answer common questions about drafting valid Wills, achieving

Important Legal Disclaimer

The information provided on this page is general legal information only and is not specific legal advice tailored to your individual circumstances. Laws change regularly and every situation is unique.

We strongly advise you to contact us to discuss your specific situation before proceeding with any action based on the information provided here.

Administration

Do lawyers charge a fee to store or release a Will in QLD?
Most law firms provide secure storage for original Wills and Powers of Attorney. While a small annual storage fee is common, firms generally do not charge ‘ransom’ fees to release documents to authorized family members after a death.
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Blended Families

What are the Risks of 'Sideways Inheritance' in a Blended Family?
Sideways inheritance is when your assets ultimately pass to your partner’s children instead of your own. Testamentary Trusts and Mutual Wills can protect aga…
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Do Step-Children Have the Right to Contest a Will in Queensland?
Step-children in Queensland can contest a Will under Queensland’s Succession Act, but their legal standing depends entirely on whether the marriage or de fac…
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Contesting a Will

How do I make a Family Provision Claim in Queensland?
If you have been left out of a will or unfairly provided for, you can apply to the court for a Family Provision Claim. You must be an eligible person, such as a spouse, child, or dependent.
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Costs

How much does an Enduring Power of Attorney and Will cost?
We offer professional estate planning packages for around $700 (plus GST) which include both a standard Will and an Enduring Power of Attorney. For standalon…
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Enduring Power of Attorney

Is a New South Wales Power of Attorney valid in Queensland?
Yes, an EPOA signed validly in New South Wales or any other Australian state is recognized nationally. However, in NSW, an EPOA only covers financial matters…
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What happens if you lose capacity without an Enduring Power of Attorney in QLD?
Without an EPOA, the Public Trustee or a QCAT-appointed guardian will handle your decision-making. This process is public, slow, and removes control from you…
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Estate Planning

Can an Interstate Child Be My Queensland Attorney or Executor?
Can an interstate child be my Queensland attorney or executor? Usually, yes. An adult child who lives in another state can generally be appointed as an attorney in a Queensland enduring power of attorney and named as executor in a Queensland will. However, the documents must be properly prepared and executed, and distance can create practical issues when the roles need to be performed. What is the difference between an attorney and an executor? An attorney acts during your lifetime, within the authority granted by an enduring power of attorney. Depending on the appointment, this may include financial matters, personal matters or both.
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What events should trigger a review of my Will and Enduring Power of Attorney?
Marriage, separation, divorce, new children, deaths of beneficiaries or executors, major asset changes and business changes all trigger a Will and EPA review.
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What happens if I die without a Will in Queensland?
If you die intestate (without a will), your estate is distributed according to rigid statutory formulas in the Succession Act 1981 (Qld). This often means …
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Can I use a DIY Will Kit in Queensland?
While ‘Newsagency Will Kits’ are legal if executed correctly, they are risky. Common errors include ambiguous wording, failing to dispose of the entire estat…
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Do I need an Enduring Power of Attorney (EPA) if I have a Will?
Yes. A Will and an EPA serve completely different purposes. A Will only operates after you die. An Enduring Power of Attorney operates while you are *alive…
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What is a Testamentary Discretionary Trust and Do I Need One?
A Testamentary Discretionary Trust is a trust created inside your Will that activates on your death. It protects capital for your intended beneficiaries whil…
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Does My Superannuation Go to My Estate When I Die?
Your superannuation does not automatically form part of your estate or follow your Will. You must lodge a Binding Death Benefit Nomination with your super fu…
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Does Getting Married or Divorced Cancel My Will in Queensland?
In Queensland, getting married or divorced can automatically revoke your existing Will under the Succession Act, unless your Will was made ‘in contemplation…
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Is an old Will still valid if I only have a photocopy?
To execute a Will in Queensland, you generally need the original document. If you only possess a photocopy of a 50-year-old Will, it is highly recommended to create a new one to avoid costly legal complications.
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What happens to superannuation when someone dies?
Contrary to popular belief, superannuation is NOT automatically part of your Will. Your super fund trustee decides who receives your death benefit unless you…
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What are the witnessing requirements for a valid Will in Queensland?
To be valid in Queensland, a Will must be signed by the testator in the simultaneous presence of two adult witnesses who must also sign in the testator’s presence. While using different pens is not illegal, it can raise suspicions of improper execution and delay probate.
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Can a gift of money or assets made before death be challenged by other family members?
Generally, no. A mentally capable adult can freely give away their assets during their lifetime, and those gifts cannot be reclaimed through their estate after death. However, gifts made under undue influence, or by a person lacking capacity, may be set aside. Significant gifts should be documented with a deed of gift and a written record of the donor’s reasons.
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What is 'Tenants in Common' vs 'Joint Tenants'?
If you own property as Joint Tenants, when one owner dies, their share automatically passes via the ‘Right of Survivorship’ to the surviving owner. If you …
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Who can challenge a Will in Queensland?
In Queensland, spouses, children (including stepchildren), and certain financial dependents can challenge a Will if they believe they have not been adequatel…
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What is the difference between a Life Interest and a Right to Reside?
Understand how life interests and rights to reside can protect a surviving partner in a blended family while preserving capital for your children.
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Executors & Administration

Who is entitled to a copy of a Will in Queensland?
Under Queensland law, certain people have a legal right to request and receive a copy of a deceased person’s will, including next of kin, beneficiaries, and people named in previous wills.
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Family Provision Claims

Who can challenge a will in Queensland? Family provision claims explained
Not everyone who disagrees with a will has legal standing to challenge it. Queensland law gives default standing to spouses, children and dependants, while siblings must prove dependency and stepchildren must prove a reasonable expectation of inheriting.
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General Questions

Can a spouse challenge a will that leaves the family home to the other party?
Can a spouse challenge a will that leaves the family home to the other party? In Queensland, a surviving spouse (including a de‑facto partner) who feels inadequately provided for by a will can bring a family provision claim under the Succession Act 1981 (Qld). This claim is separate from a challenge to the will’s validity and focuses on whether the will made adequate provision for the spouse’s proper maintenance and support.
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Who Should Hold My Enduring Power of Attorney and Health Directive?
An enduring power of attorney (EPOA) and an advance health directive are two of the most important documents you can put in place for later life, particularly if you become unable to make decisions yourself. However, they only work properly if the right people can access them when needed and the originals are kept safe. Who should hold the original enduring power of attorney? The original EPOA is the document that carries legal authority. While certified copies are widely accepted, the original may still be required in some situations, such as property transfers or complex financial dealings. To avoid loss, damage or accidental destruction, many people choose to store the original with their solicitor or accountant.
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What If an Executor Does Not Distribute an Estate Properly?
Executors occupy a position of trust. When someone dies, the executor named in their will is responsible for administering the estate according to the will and the law. Most executors do this diligently. Occasionally, however, beneficiaries believe the estate has been mismanaged or not distributed properly. An executor’s core tasks are to collect the deceased’s assets, pay valid debts and expenses, and distribute what remains to the correct beneficiaries. They must act in the best interests of the estate as a whole, not favour one person over another, and keep appropriate records of what they have done.
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How Do I Find a Lost Will in Queensland?
Losing track of a relative’s will is more common than most people expect, particularly where the will-maker was hospitalised or moved between residences before death. This guide explains the practical steps to take and what happens if the will genuinely cannot be located. Where a Will Might Be Held A will is most commonly held by the solicitor who prepared it, the Public Trustee of Queensland, a bank safe deposit box, or with the will-maker’s personal papers. Because Queensland has no central will register, there is no single search that will confirm a will’s existence or location.
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Enduring Power of Attorney vs Advance Health Directive in Queensland
Both documents deal with decision making when you lose capacity, but they operate differently. An Enduring Power of Attorney under the Powers of Attorney Act 1998 (Qld) appoints a person (your attorney) to make personal, health, and financial decisions on your behalf when you cannot make them yourself. An Advance Health Directive is a separate document under the same Act, signed in the presence of a doctor and an eligible witness, that records your specific directions about future health care treatments.
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How much does a Will cost in Queensland?
The cost of a Will in Queensland depends on who prepares it. There are three main tiers: DIY Will Kits: A do it yourself Will kit from Australia Post costs around $32 but carries a significant risk of invalidity if not executed correctly, and an invalid Will results in the estate being distributed under Queensland’s intestacy rules rather than the deceased’s wishes. The Public Trustee: The Public Trustee of Queensland offers free Will preparation, but the hidden cost is that the Public Trustee charges estate administration fees upon death, which can be substantial depending on the size of the estate and should be reviewed carefully before committing. Private Solicitor: A private solicitor typically charges between $400 and $600 for a straightforward single Will, which covers drafting, execution guidance, and secure storage, making it the most reliable option for most Queensland residents. Listen to the full Legal Matters episode here
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Should I use a codicil to update my Will in Queensland?
Using a codicil is generally strongly discouraged by Queensland solicitors. A codicil is a separate document, executed with the same formalities as a Will under the Succession Act 1981 (Qld), that amends or supplements an existing Will without revoking it entirely. The practical problem is that codicils are easily separated from, or lost independently of, the original Will, which creates disputes about which document governs the estate. A codicil that cannot be located alongside the original Will may be presumed revoked.
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How long must a Queensland solicitor keep my legal documents?
When a legal matter concludes, the documents in your file belong to you, but the solicitor will usually retain the file in storage. The rules governing how long they must keep those documents, and when they can destroy them, were updated significantly in Queensland to clarify the obligations of law firms. The governing authority is section 713A of the Legal Profession Act 2007 (Qld) . The 7-Year Rule for General Documents Under section 713A, a law firm can destroy client documents from general legal matters (such as a finalized property conveyance, a completed family law matter, or general litigation) if all three of the following conditions are met:
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Can a lawyer charge ongoing fees to store my Will?
A common concern when drafting a Will is what happens to the original document and how much it will cost to store safely. Where legal costs are likely to exceed $3,000 (excluding GST and disbursements), disclosure obligations apply under the Legal Profession Act 2007 (Qld) . For a one-off safekeeping fee, the amount will determine what disclosure was required. A firm cannot impose ongoing annual storage fees for holding your Will unless that specific arrangement was clearly disclosed and agreed to at the time you engaged them.
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Health

Is a Copy of an Advance Health Directive Legally Binding in Queensland?
An advance health directive is meant to give you certainty that your medical wishes will be followed if you lose the capacity to speak for yourself. That certainty depends entirely on where the original document sits. Why does the original matter so much? Under Queensland’s Powers of Attorney Act 1998 (Qld), an advance health directive only carries legal weight in its original, properly executed form.1 Medical staff are not obliged to follow a copy, even a certified one. If only a copy exists and no original is on file, staff may choose to have regard to it, but they are not bound to, and you or someone acting for you could not pursue a claim against them for not following it.
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What is an Advance Health Directive in Queensland?
An Advance Health Directive (AHD) is a formal document where you specify exactly what medical treatments you want, or do not want, if you become terminally ill…
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International Wills

Is a Will made overseas valid in Australia?
It depends. Australian Wills are recognised across all states under mutual recognition principles. A foreign Will may be recognised, but this depends on the …
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Litigation

Can a Will be challenged in Queensland?
Yes. In Queensland, eligible persons (spouses, children, and certain dependents) can apply to the Supreme Court for a ‘Family Provision Application’ if they …
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Power of Attorney

Does my Enduring Power of Attorney end when I die?
Yes. An Enduring Power of Attorney automatically and instantly becomes invalid the moment you die. After death, only the Executor appointed in your Will has the legal authority to manage your assets and estate.
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Probate

What is Probate and is it always necessary in Queensland?
Probate is a Supreme Court document confirming a Will’s validity and the executor’s authority. It is not legally required for every estate, but is typically …
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How long does it take to get Probate in Queensland?
On average, the Probate process in Queensland takes 8 to 12 weeks from the date you instruct a lawyer. This timeframe is composed of a mandatory 14-day notic…
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When is a Grant of Probate required in Queensland?
Probate is always required if the deceased solely owned real estate. For bank accounts, aged care bonds, and shares, it depends on the institution’s own specific monetary thresholds, typically ranging from $15,000 to $100,000.
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What is the role of an executor and who should I appoint?
An executor is the person legally responsible for administering your estate after you die. Their duties include arranging the funeral, locating assets, payin…
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What are Letters of Administration and when do I need them in Queensland?
Letters of Administration are granted by the Supreme Court when someone dies without a Will, appointing an administrator to manage the estate.
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Can I avoid probate by putting my property in a trust?
Understand the differences between a testamentary trust and a discretionary trust, and how they affect probate and CGT.
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Registration

When do I need to register a Power of Attorney?
In Queensland, you only need to register a Power of Attorney with the Land Titles Office if your Attorney needs to sign documents related to real estate tran…
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Resources

Who to contact for Wills, Estates & Probate in Queensland?
A directory of the most important contacts for Wills, Estates, and Probate matters in Queensland, including QCAT, the Public Trustee, and Bell & Senior Lawyers.
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Will Disputes

Can a Grandchild Challenge a Will in Queensland?
Can a grandchild challenge a will in Queensland? Sometimes, but not automatically. A grandchild does not receive an automatic right to challenge a grandparent’s will simply because of the family relationship. Eligibility for a family-provision application is set by the Succession Act 1981 (Qld) and depends on the claimant’s relationship with, and dependency on, the deceased.1 Who may apply for family provision? The legislation identifies eligible applicants, including a deceased person’s spouse, child and dependant. A grandchild may be able to apply if they satisfy the statutory definition of dependant—for example, where the deceased wholly or partly maintained or supported them and they fall within the relevant relationship category.1
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Can I challenge a Will signed by someone with dementia?
Yes, you can challenge a Will in Queensland if the testator lacked testamentary capacity due to dementia. The legal test relies on the historical case of Banks v Goodfellow, requiring proof that the testator did not understand the nature, assets, or claims on their estate when signing.
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What is undue influence and can it invalidate a Will?
Undue influence occurs when a testator is coerced or pressured into making a Will that does not reflect their true, independent wishes. If proven, the Supreme Court of Queensland can declare the Will void. Signing a blank Will and filling it in later is invalid and may constitute criminal forgery.
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Wills

What powers should I give my Executor in my Will?
Your Will must expressly authorise your Executor to maintain properties, pay urgent expenses, service debts, and manage investments. Without these express powers, they may face significant delays before they can act.
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