FAQs

A Will is a written document setting out how your assets are to be distributed after your death. Formal requirements, including signing, dating and witnessing, are critical, and errors can leave your loved ones dealing with unnecessary stress and expense.

While courts may sometimes accept informal Wills, such as unsigned documents or notes, doing so often leads to disputes, delays and emotional strain for families. A properly drafted Will ensures clarity, reduces the risk of challenges and allows your estate to be administered efficiently.

See more about Wills and Testamentary Trusts

Dying without a Will is known as intestacy. Your estate is distributed according to statutory rules, which may not reflect your personal wishes.

For example:

• If you have no spouse, your estate is divided between your children
• If you have a spouse and no children, your spouse receives the entire estate
• If you have both a spouse and children, your spouse is entitled to the following:
  – $150,000.00 and the household items, plus
  – 1/2 of the balance if one child survives OR 1/3 of the balance if more than one child survives (with the remainder to the surviving child/ren)

Making a Will is the only way to control how your assets are distributed.

Intestacy occurs when a person dies without a valid will, or when a will only covers part of the estate. The remaining estate is called the “intestate estate.” Queensland intestacy law determines who inherits the deceased’s property according to statutory rules of inheritance, sometimes called the law of descent and distribution.

If your Will leaves a specific item to someone, such as a car, jewellery, shares or a property, but you no longer own that item when you pass away, the gift can fail. This means the person you intended to benefit may receive nothing.

This situation arises more often than people expect. Assets are regularly sold, upgraded or restructured over time, and unless your Will is updated or drafted carefully, those changes can override your original intentions.

With the right legal advice, your Will can be structured to allow flexibility and reduce the risk of gifts failing as your circumstances evolve.

Ademption occurs when a specific gift in your Will no longer exists at the time of your death. For example, if you leave a particular car, piece of jewellery, parcel of shares or property to someone, but you sell or dispose of it before you pass away, that gift simply fails and the beneficiary may receive nothing in its place.

Without careful drafting, ademption can unintentionally defeat your wishes. There are strategies available to reduce this risk, but they must be built into the Will correctly. A professionally prepared Will helps ensure your intentions are protected, even if your circumstances change.

Digital assets are often overlooked, yet they can be valuable and impossible to recover without proper planning.

These assets include cryptocurrency, NFTs, online businesses, monetised social media accounts, online savings accounts and other digital holdings protected by passwords or private keys. Without clear instructions and secure record-keeping, executors may not even know these assets exist, let alone access them.

Professional estate planning, combined with a carefully drafted Will, ensures digital assets are identified, protected and capable of being transferred rather than lost.

A Testamentary Discretionary Trust (TDT) is a trust established under a Will, designed to provide long-term protection and flexibility for your assets. The Will appoints both the executors of the estate and the trustees of the discretionary trust, who are responsible for managing and distributing the trust assets in accordance with its terms.

A TDT can in certain circumstances safeguard assets from risks such as divorce, bankruptcy or other creditor claims, making it particularly useful for children or beneficiaries who may be in vulnerable financial situations. It allows parents to preserve wealth for their children and grandchildren, while maintaining discretion and control over how the assets are distributed, ensuring protection and flexibility well beyond their lifetime.

See more about Wills and Testamentary Trusts

Yes, in New South Wales where recent court decisions have made this more accessible.

The 2023 case of Curtis v Curtis confirmed that grandchildren may be eligible to bring a family provision claim if they can demonstrate dependency or partial dependency, and that there was a special relationship creating a moral obligation on the deceased.

This case lowered the practical threshold for grandchildren to bring claims, meaning estate plans that exclude grandchildren without careful consideration may now be more vulnerable to challenge.

Inheritance rights for stepchildren depend on both the family structure and the jurisdiction. In New South Wales, stepchildren must generally show they lived with and were dependent on the stepparent to be eligible to challenge a Will. In Queensland, the position is broader and may be available.

There are several strategies to protect your estate, including Mutual Will Agreements, careful structuring of property ownership and other succession planning strategies.

Ultimately, the most effective safeguard is a Will and prepared on tailored advice from an experienced estate planning professional. Clear planning today can prevent conflict and protect family relationships in the future.

See more about Wills and Testamentary Trusts

High-profile estates, such as Leonard Cohen’s, have demonstrated how vulnerable poorly stored Wills can be.

RobertsLaw implements safeguards to ensure our clients original Wills are stored in secure, fireproof facilities. These steps help ensure your Will cannot be altered or disputed due to handling concerns, which can save your estate thousand of dollars. 

See more about Estate Disputes 

In 2022, the ABC Four Corners program examined the operations of Public Trustees and raised concerns about outcomes for some clients, including long-term financial disadvantage.

If your Will appoints the Public Trustee as an executor, it may be worth reviewing your estate planning arrangements to ensure they still align with your intentions.

Queensland recognises three main types:

• General Power of Attorney (often used by companies or for specific purposes)
• Enduring Power of Attorney (used by individuals for ongoing decision-making)
• Advance Health Directive (covering special health decisions and end-of-life matters)

Each serves a different purpose, and selecting the wrong one can limit protection when it is most needed.

See more about an Enduring Power of Attorney

A Life Plan provides clear guidance to your attorney about how decisions should be made if you lose capacity.

It covers lifestyle, medical and personal preferences and works alongside an Advance Health Directive. Without this guidance, attorneys are often left to make assumptions, which can lead to conflict or unintended outcomes.

In certain circumstances, an attorney acting under an Enduring Power of Attorney may deal with superannuation matters, including Binding Death Benefit Nominations.

In Re Narumon Pty Ltd (2018), the court accepted that there is generally no restriction preventing an attorney from completing or signing a BDBN. However, the court indicated caution where changes may benefit the attorney.

This is a legally sensitive area, and poorly considered actions can invalidate nominations or create conflicts of interest.

See more about Superannuation

Probate is the formal court recognition that confirms a Will as valid and authorises the executor to administer the estate. It is often required where estate assets exceed $50,000.

Obtaining probate correctly is essential to avoid delays, ensure assets can be accessed, and reduce legal risk for executors.

See more about Probate and Letters of Administration 

While it is possible to apply for Probate without a lawyer, the process can be complex. Legal advice can help ensure the application is completed correctly and reduce the risk of delays or errors.

The timeframe for Probate can vary depending on the complexity of the estate, but it typically takes several weeks to a few months. Delays can occur if documentation is incomplete or if the estate involves complex assets.

Being an executor is a serious legal responsibility. Executors must deal with probate, creditors, asset recovery and correct distribution, all while avoiding personal liability.

The role carries significant responsibility and often requires both legal and financial oversight. We recommend engaging professionals, as executors can be liable for unpaid tax (including ATO liabilities) and for incorrect distributions, particularly if a later Will is discovered after partial or full distribution. Typically, the estate is responsible for the executor legal fees in administering the estate. 

See more about Estate Administration

The executor has several key duties:

1. Identify all assets and liabilities of the deceased
2. Apply for Probate, if required
3. Pay all debts of the estate using the estate funds, which take priority over distributions
4. Distribute the estate according to the Will

Executors cannot alter the Will without Court approval. In some cases, executors may seek agreement between beneficiaries to vary distributions but there can be risks so legal advice is essential.

Estate administration can take several months to over a year, depending on the complexity of the estate, the number of beneficiaries, and whether any disputes arise.

Executors must act strictly in accordance with the law. Mistakes, delays or early distributions can expose them to personal liability.

Professional guidance helps ensure compliance, reduces stress, and protects executors throughout the estate administration process.

See more about Estate Administration

An estate is considered complex where it involves trusts, overseas assets, business interests, jointly owned property or competing claims.

In these situations, mistakes can expose executors to personal liability and significantly delay distributions. Engaging a probate professional helps ensure all legal, tax and administrative obligations are met, protecting both executors and beneficiaries.

Tax can have serious financial consequences for an estate and its beneficiaries.

Land tax may be payable if the deceased estate, or a beneficiary, holds land with a total taxable value of $600,000 or more. While a principal place of residence exemption often applies, it is not automatic and may only be available to the estate for up to 12 months after death.

If the estate is not finalised within that timeframe, land tax may become payable and can later be transferred to beneficiaries. This can be particularly burdensome for children or other beneficiaries who inherit property but do not live in it.

Executors also face risks if they fail to properly register their interest on title by 30 June following the death. For this reason, it is generally recommended that executors obtain a clearance certificate from Revenue before distributing estate assets involving real estate.

See more about Estate Administration

Under Queensland succession law, an executor must ensure all creditors of the deceased are paid from a solvent estate. These debts are obligations of the estate, not the executor personally, and must be settled before any distribution to beneficiaries.

If executors or beneficiaries pay expenses themselves, they can be reimbursed from the estate once assets have been collected, provided the estate is solvent.

If an executor is unable to act due to being overseas, the Supreme Court can appoint another person to administer the estate while the original executor remains absent.

RobertsLaw can assist with this process to ensure the administration continues smoothly and without delay.

Yes. Executors may submit bills directly to the deceased’s bank to have them paid from the deceased’s accounts. While accounts are usually frozen, they can often be accessed for urgent expenses such as funeral costs.

Any expenses paid personally by executors or beneficiaries can generally be reimbursed from the estate before distribution, provided sufficient funds are available.

If no valid nomination is in place, the superannuation trustee will decide who receives the benefit, which may not align with your wishes.

See more about Superannuation

If your SMSF purchased property using a bare trust and the loan has been repaid, the property can usually be transferred directly into the superannuation fund. This step must be handled carefully to avoid unnecessary tax and compliance issues.

When structured correctly, this transfer can result in meaningful cost savings. However, mistakes at this stage can trigger unintended tax consequences, so it is important that the process is managed properly.

A Binding Death Benefit Nomination (BDBN) only works if it strictly complies with legal requirements.

If valid, it ensures that superannuation benefits are paid to a nominated beneficiary following the death of the fund member. However, there are strict requirements around how nominations are completed, renewed, and served, including who can be nominated.

The Queensland Supreme Court decision in Williams v Williams highlighted that even a properly completed nomination may fail if it is not served correctly on all trustees. Small procedural errors can completely undo your intentions.

Not usually, although this legal position can be altered if you specifically instruct for the funds to be used to pay a mortgage or other expense. It is best to take legal advice.

Yes, but you need to take steps to ensure this occurs and you should seek legal advice about whether this is the best strategy.

Common grounds include lack of testamentary capacity (for example, where the will-maker suffers from dementia or similar conditions), lack of knowledge or approval, and undue influence or coercion, or lack of formal validity.

These disputes are complex, emotional and often costly. Early legal advice is essential whether you are defending a Will or considering a challenge.

See more about Estate Disputes

Eligible persons commonly include spouses, children (including adopted and stepchildren) and, in limited circumstances, foster children who were financially dependent and under 18 at the time of death.

Poor succession planning increases the likelihood of claims. Strategic estate planning can significantly reduce this risk and protect intended beneficiaries.

See more about Estate Administration

Yes. Under Queensland law, an eligible person to make a family provision claim (such as a spouse, child or dependent) can apply to the Supreme Court to remove an executor if they fail to properly administer the estate.

For example, in Re Hartley [2020] QSC 251, a son who was not a beneficiary applied to remove his brother as executor due to delays. While the executor was not removed, the case confirms that non-beneficiaries with family provision rights may challenge an executor’s conduct.

See more about Estate Disputes

Possibly. Entitlement depends on your relationship to the deceased, whether you fall within an eligible category of claimant, and whether you are within the required timeframe to make a claim.

A Family Provision Application may be available depending on your circumstances.

In Queensland, estates are typically vulnerable to claims for between 6 to 9 months after death, although this period can sometimes be extended. In NSW, claims can be made up to 12 months after death.

If an executor distributes assets too early, they may be personally liable for any successful claim made after distribution.

A Binding Financial Agreement (BFA) is a private agreement that sets out how assets, liabilities and financial resources will be divided if a relationship breaks down. It can be entered into before, during, or after a relationship.

Yes, when prepared correctly, a BFA is legally enforceable. Both parties must receive independent legal advice, and the agreement must be carefully drafted and properly executed.
Attention to detail is critical. At Roberts Law, we focus on ensuring your agreement is thorough, compliant, and tailored to your specific circumstances so you can rely on it when it matters most.

To obtain a divorce in Australia, you must apply to the Federal Circuit and Family Court of Australia. RobertsLaw can guide you through the process, whether you apply jointly or individually, ensuring all legal requirements are met. We currently maintain a 100% success rate with divorce applications.

You must have been separated for at least 12 months and 1 day. Separation can be communicated verbally or through conduct, such as moving out, and may occur even if you continue living under the same roof, provided legal criteria are met. Periods of reconciliation of up to 3 months are allowed, as long as the cumulative separation meets the 12-month requirement.

In most Australian family law disputes, you’re required to attempt mediation (family dispute resolution) before going to court, particularly for parenting matters. Exceptions apply in urgent cases or where there are concerns about family violence or safety.

Attendance depends on your situation. If there are no children under 18 and the application is made jointly, a hearing is typically not required. If children are involved and you are making a sole application, attendance may be required. Our team can advise you and appear on your behalf where necessary.

Divorce can be one of the most significant events in a person’s life, both financially and emotionally. It may involve a redistribution of assets, ongoing financial obligations, and long-term impacts on both parties and their children. Our team provides strategic advice and clear guidance to help protect your rights and financial position throughout the process.

Both married and de facto couples in Australia are entitled to a just and equitable division of property (which does not always mean equal). The Court considers a range of factors, including:

• Contributions made by each party (financial and non-financial)
• Length of the relationship
• Care of children
• Future needs, including health and age of each party

Property settlements can be formalised in several ways:

• Binding Financial Agreements (BFA): Private agreements that set out how property and finances will be managed
• Consent Orders: Court-approved agreements that are legally enforceable without attending court

Court Orders: Where agreement cannot be reached between parties

A spouse may be entitled to maintenance if they are unable to adequately support themselves due to age, physical or mental incapacity, caring responsibilities, or a significant financial disparity between the parties. RobertsLaw can advise on eligibility, calculate appropriate maintenance, negotiate agreements, and prepare and file court applications.

The Court follows a structured process:

• Determine if it is just and equitable to divide assets
• Identify all assets and liabilities
• Assess financial and non-financial contributions
• Consider future needs of each party
• Determine whether the outcome is just and equitable

Yes. In Woodcock (No.2) [2022] FedCFam, the Court held that interests in discretionary family trusts can be treated as property and included in the asset pool. This means complex financial structures such as trusts and company interests may be considered when dividing assets.

No. Parties can apply to the Court to obtain details of a former partner’s superannuation through the Australian Taxation Office (ATO). This ensures transparency and supports a fair division of assets.

The impact of family violence, including financial or economic abuse, can be considered in property settlements. Examples include controlling finances, restricting employment, or incurring debts in another person’s name. These factors may influence how the Court divides assets.

In Australia, strict time limits apply to property settlements. For married couples, applications must be filed within 12 months of divorce. For de facto relationships, the limit is 2 years from separation. Extensions are only granted in limited circumstances, so it’s important to seek legal advice promptly.

The best interests of the child are the primary consideration. This guides decisions about:

• Living arrangements
• Time spent with each parent
• Decisions relating to schooling, health and religion
• Travel and relocation

The Court has made it clear that “self-help” is not appropriate. Even if the other parent has breached arrangements, withholding the child in return as a purely retaliating action is not justified. The proper course is to apply to the Court, which has powers to enforce orders and address breaches, including serious penalties in extreme cases.

A Parenting Plan is a written agreement between parents about care arrangements for their children and is not legally enforceable. Consent Orders are formal agreements approved by the Federal Circuit and Family Court of Australia and are legally binding and enforceable.

If a parent fails to comply with parenting orders, the correct approach is to apply to the Court for enforcement. The Court can impose remedies and ensure compliance, protecting both your rights and your child’s best interests.

Yes. We provide specialist advice and representation in parenting disputes, including repeated breaches of orders. We help you understand your options and take appropriate steps to protect your child’s wellbeing and your legal position.

Court proceedings are generally a last resort but may be required where negotiations or mediation have failed, or where urgent issues arise. This may include:

• Family violence or child safety concerns
• Child relocation disputes
• Disposal or risk to assets
• Prolonged or stalled negotiations

Our team provides strategic, empathetic representation throughout Court proceedings. We guide you through each stage of the process, helping you make informed decisions while protecting your personal and financial interests.

Pets are no longer treated simply as property. If parties cannot agree, the Court considers:

• The welfare of the animal
• Any history of abuse or threatening behaviour
• The emotional connection between the pet and each party or their children

The Court will not order shared ownership. The focus is on the welfare of the animal and a clean separation between parties.