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Important Information and legal definitions

When creating a Will, there is some important information to know before you get started. Here we list some frequently asked questions, and provide definitions for terms you might come across when making a Will. 

When should a Will be reviewed?

  • Upon marriage
  • Upon separation
  • Upon divorce
  • Upon entering into a de facto relationship
  • When amendments are made to the law (e.g. tax, superannuation)
  • After the purchase or sale of substantial assets
  • Upon the birth of a child
  • Upon the death of a beneficiary or Executor
  • Once children or grandchildren turn 18
  • Every three years or so to make sure it reflects your current wishes

A minor change or addition to your Will can be done simply by adding a codicil. This saves redoing the whole Will. It is an extra document that becomes part of your Will, best drawn up by a solicitor, and needs to be witnessed. A codicil is a straightforward way of adding a gift to a charity in your Will.

Who is a testator
A testator is a person making a Will.

The difference between testate and intestate
‘Testate’ is the status of dying and leaving a valid Will providing for a valid distribution to the beneficiaries specified in the Will.

‘Intestate’ means the status of dying:

  • Without leaving a Will, or,
  • Leaving a Will that does not validly distribute all of the assets of the Estate

What does ‘probate’ mean?
Probate is the process of transferring legal title to property from a person who has died to that person’s heirs or beneficiaries. The probate process is supervised by a court and can include paying any taxes or debts that are owing, gathering and accounting for assets, determining the validity of a will, settling disputes over who is to inherit and distributing assets. The legal term for the probate process is testate proceedings.

What is a testamentary trust?

This is a trust created under the terms of a Will.

It includes:

  • A trust set up for the benefit of minor beneficiaries or a protective trust for those with a disability
  • A life Estate
  • A trust to carry on a business

What is an Executor?
An Executor is someone you appoint in your Will to ensure that the terms of your Will are carried out.

Your Executor should be:

  • Reliable and trustworthy
  • Preferably with business or Estate administration experience
  • Available and willing to act
  • Someone who is likely to survive you (i.e. should not be significantly older than you)

If you don’t appoint an Executor, the Court will appoint and Administrator to execute your wishes. 

What is Power of Attorney?
Giving someone ‘Power of Attorney’ means you are giving them the power to look after your health and/or legal and financial affairs. An Enduring Power of Attorney allows someone you trust and nominate to act on your behalf in case you are no longer able to do so.

For instance, your attorney will be able to operate your bank account if you are overseas. Should you ever become mentally incapacitated, this person would act on your behalf. Guardianship If you have minor age children (under 18 years), thought should be given to appointing a guardian/s to look after them should anything happen to you in the absence of a partner. You should ensure that the guardian/s you appoint are comfortable with this arrangement. Decisions concerning guardianship of your children may be made by others, including the Courts, but the wishes stated in your Will will be given proper consideration.

Beneficiaries are the people or organisations nominated in the Will to benefit from the Estate. An Executor can also be a beneficiary.

Witnessing a Will
A Will is invalid unless it is signed in the presence of two witnesses. A beneficiary must not witness a Will.

The effect of marriage and divorce

Marriage revokes a Will unless the Will is made in contemplation of marriage. In QLD, divorce revokes the appointment of the former spouse as Executor and revokes any gift to the former spouse. This may lead to a partial intestacy.

If you have any questions, or need further support please call 1800 448 448 or fill in this form