What is estate planning?
Estate planning is the process of deciding — and documenting — who receives your assets when you die, who administers them, and who can make decisions for you if you lose capacity before then. A will is one part of it. On its own, a will does not deal with your superannuation, your jointly owned property, assets held in a family trust, or what happens if you are alive but unable to make decisions.
That gap is where most estate planning goes wrong. People make a will, assume it covers everything they own, and it does not.
A will covers your estate. These assets usually sit outside it.
- Superannuation — the fund trustee decides, unless a valid binding nomination directs otherwise
- Life insurance held inside super — follows the super, not the will
- Property held as joint tenants — passes automatically to the survivor
- Family trust assets — owned by the trust, not by you
- Company assets — owned by the company; your shares pass, the assets don't
The documents in an estate plan
Most Queensland estate plans are built from four documents. Which you need depends on your circumstances, not on a package.
Your will
Appoints your executor, distributes your estate, and can establish testamentary trusts. Operates only on death, and only over estate assets.
Enduring power of attorney
Appoints someone to make financial and/or personal and health decisions if you lose capacity. Operates while you are alive.
Advance health directive
Records your own directions about future medical treatment, including end-of-life care, for when you cannot communicate them yourself.
Binding death benefit nomination
Directs your superannuation death benefit. Made with your fund, not in your will — and in most funds it expires after three years.
What makes a will valid in Queensland?
Under section 10 of the Succession Act 1981 (Qld), a will must be in writing and signed by the will-maker, with that signature made or acknowledged in the presence of two or more witnesses present at the same time. Those witnesses must then sign in the will-maker's presence. You generally must be 18 or over.
The court has a limited power to admit a document that does not meet these requirements if it is satisfied the person intended it to form their will — but that is an expensive application your family has to fund and argue, not a substitute for doing it properly.
The two mistakes that cost the most
- A beneficiary witnessing the will. It doesn't invalidate the will, but it can void that person's gift. Use a neutral adult with no interest in the estate.
- Storing it where nobody can find it. If the original cannot be located, the law may presume you destroyed it intending to revoke it. We hold original wills in safe custody at no charge.
Testamentary capacity
To make a valid will you must understand the nature and effect of what you are doing, have a general sense of what you own, appreciate who might reasonably expect to benefit, and be free of any disorder of mind that distorts those judgements — the test from Banks v Goodfellow, still applied in Queensland today.
Where capacity is genuinely in doubt, the Supreme Court can authorise a will for a person who lacks testamentary capacity under sections 21 to 28 of the Succession Act. It is a real option for families dealing with dementia or acquired brain injury, but it requires a court application and evidence.
What happens if you die without a will
If you die without a valid will you die intestate, and the Succession Act applies a fixed statutory formula that takes no account of what you would have wanted. It does not consider promises you made, who cared for you, or who needed the help.
| Who survives you | Who receives what |
|---|---|
| Spouse, no children | The spouse receives the whole residuary estate |
| Spouse and one child | Spouse: household chattels, the first $150,000, and one-half of the residue. Child: the other half |
| Spouse and two or more children | Spouse: household chattels, the first $150,000, and one-third of the residue. Children: two-thirds, shared equally |
| Children, no spouse | Children share equally; a deceased child's share passes to their own children |
| No spouse or children | Parents, then siblings, then grandparents, then aunts and uncles, then cousins |
| No eligible relatives | The estate can ultimately pass to the State |
De facto partners: the two-year rule
A de facto partner is only treated as a spouse on intestacy if you lived together on a genuine domestic basis for a continuous period of at least two years ending on the date of death (section 5AA).
Below that threshold, a long-term partner may receive nothing under the intestacy rules and would have to bring a family provision claim to get anything at all. If you are in a newer relationship, a will is not optional.
Where there is no will, someone must also apply for letters of administration before any asset can be dealt with — slower, more expensive, and more contested than probate on a valid will.
Enduring powers of attorney
An enduring power of attorney appoints someone to make decisions for you if you lose capacity — and it is arguably more important than your will, because you have to live with the consequences. In Queensland one document can cover both financial matters and personal and health matters, which not every state allows.
How it works in Queensland
- Made on the approved government form
- One eligible witness is enough (section 44)
- The witness must certify you appeared to have capacity
- Your attorney's signature does not need witnessing
- Financial power can start immediately or at a stated time
- Personal and health power only begins on loss of capacity
If you have no enduring power of attorney
For health decisions, Queensland law appoints a statutory health attorney by default — generally your spouse, or if none, an unpaid carer, or a close friend or relative. If nobody is available or suitable, the Public Guardian steps in.
For financial decisions there is no default at all. Someone has to apply to QCAT to be appointed as your administrator: a public tribunal process, at the worst possible time, with no guarantee the person you would have chosen is the person appointed.
Advance health directives
An advance health directive records your own instructions about future medical treatment, rather than leaving those decisions to someone else's judgement. It can address life-sustaining measures, resuscitation, and treatment you would refuse in defined circumstances.
Under section 44(6) of the Powers of Attorney Act, an advance health directive must include a certificate signed by a doctor or nurse practitioner stating that you appeared to have the capacity necessary to make it. That practitioner cannot be the witness, cannot be your attorney, and cannot be a beneficiary of your will. The practical effect is that an advance health directive takes a medical appointment as well as a legal one — worth knowing before you start.
Superannuation — the biggest gap
Superannuation does not automatically form part of your estate, and your will does not control it. The fund trustee decides who receives your death benefit, unless you have a valid binding nomination in place directing them.
Most binding nominations expire after three years
Under SIS Regulation 6.17A, a binding death benefit nomination must be in writing, signed before two adult witnesses who are not named in it, and name only dependants or your legal personal representative. Unless the fund's rules provide otherwise, it ceases to have effect three years after it was signed.
Many people sign one, file it, and never look at it again. Check the date on yours. Some funds now offer non-lapsing nominations, and the three-year rule does not apply to self-managed funds — but that depends entirely on the trust deed.
Who can actually receive your super
A death benefit can only be paid to a dependant as defined in the superannuation legislation — a spouse, a child of any age, someone in an interdependency relationship with you, or a person financially dependent on you — or to your legal personal representative to be dealt with under your will.
Tax matters here too. Broadly, the taxable component paid to someone who is not a death benefit dependant for tax purposes — most commonly an independent adult child — is taxed at 15% plus the Medicare levy. An adult child who is financially independent is a dependant for the purposes of receiving the benefit but not for the purposes of taxing it. That distinction catches a lot of families, and it is worth planning around rather than discovering later.
Testamentary trusts
A testamentary trust is created by your will and comes into existence on your death. Instead of an inheritance passing directly to a beneficiary, it is held and managed under the terms of the trust.
The tax advantage is real and specific. Income distributed from a testamentary trust to a minor is generally taxed as excepted trust income under section 102AG of the Income Tax Assessment Act 1936 — meaning at ordinary adult marginal rates with the full tax-free threshold, rather than the penalty rates that otherwise apply to a minor's unearned income. For a family with young children, that difference compounds substantially over years.
Since 2019 the concession is confined to income from assets that came from the estate itself, so injecting outside assets into the trust to access the rate does not work.
When a testamentary trust earns its cost
- Young children who would otherwise inherit outright at 18
- Blended families, where control and eventual destination both matter
- A beneficiary with a disability or who cannot manage money
- A beneficiary facing bankruptcy, creditors or relationship breakdown
- Estates large enough for the tax treatment to outweigh the running cost
They are not appropriate for everyone. A testamentary trust has ongoing accounting and administration costs, and for a modest estate those can outweigh the benefit. We will tell you if that is your situation.
Marriage, divorce and separation
In Queensland, marriage generally revokes an existing will, and divorce, or the end of a de facto relationship, generally revokes gifts to a former partner and their appointment as executor. Separating from a husband or wife, without divorce, does neither.
That last point is the dangerous one. A person who has separated but not divorced still has an estranged spouse who may inherit under an old will, may be the appointed attorney under an old enduring power of attorney, and may still be the nominated beneficiary of their superannuation. Separation is one of the strongest reasons to review an estate plan immediately, not eventually.
Can your will be challenged?
Two very different things get called "contesting a will", and the deadlines differ.
Family provision claim
The will is valid, but an eligible person — a spouse, child (including a stepchild) or dependant — argues it does not make adequate provision for their proper maintenance and support.
Validity challenge
The will itself is attacked — lack of testamentary capacity, lack of knowledge and approval, undue influence, or fraud.
No will is challenge-proof. But good drafting reduces risk considerably: recording reasons for an unequal distribution, obtaining a capacity assessment where age or illness might later be raised, keeping detailed file notes of your instructions, and being realistic about who may feel aggrieved. If you expect a dispute, say so at the first appointment — it changes how we prepare the documents.
Executors: the six-month rule
An executor who distributes the estate more than 6 months after the date of death, without having received notice of an intended family provision claim, is generally protected under section 44(3) of the Succession Act.
Distribute earlier, or after receiving notice, and the executor can be personally liable if a claim later succeeds. Take advice on timing before paying anyone out.
When to review your estate plan
An estate plan is not a document you complete once. It is a set of arrangements that has to keep matching your life. Review yours after any of these:
- Marriage or entering a de facto relationship
- Separation or divorce
- Birth or adoption of a child or grandchild
- Death of a spouse, executor or beneficiary
- Buying or selling property
- Starting, buying or selling a business
- Establishing or restructuring a trust or company
- Setting up a self-managed super fund
- Receiving a significant inheritance
- A beneficiary developing additional needs
- Moving interstate or overseas
- Three years passing since your super nomination
Absent any of those, a review every three to five years is sensible — which conveniently aligns with the super nomination cycle.
How we work
What to bring to your first appointment
You do not need all of this to start — but the more of it you have, the more useful the first appointment will be.
- Any existing will, EPA or advance health directive
- Names and dates of birth for your family
- Details of property and how it is held
- Recent superannuation statements
- Any existing death benefit nomination
- Life insurance policy details
- Trust deeds and company documents
- Details of significant debts
- Details of any overseas assets
- Names of your accountant and financial adviser
The mistakes we see most often
- Assuming the will covers superannuation. The single most common and most expensive error.
- A binding nomination that lapsed years ago. Three years passes quickly.
- Separating without updating anything. The estranged spouse remains executor, attorney and beneficiary.
- Appointing an executor without asking them. It is a substantial job with personal liability attached.
- Assuming jointly owned property passes under the will. Held as joint tenants, it passes by survivorship regardless.
- Ignoring who controls the family trust. The appointor role often matters more than the assets.
- No plan for incapacity at all. Leaving your family to a QCAT application.
- A DIY will kit for a blended family. The circumstance that most needs proper drafting is the one most often done cheaply.
What it costs
We quote fixed fees for wills, enduring powers of attorney and advance health directives, confirmed in writing before we start. You will know the number before any work begins.
- Fixed fee for a standard will
- Package pricing for couples
- Fixed fee for EPAs and health directives
- Quoted separately for testamentary trusts
- Free safe custody of your original will
- Written estimate for estate administration
Complexity drives cost. A single person with a house and a super fund is a different job from a business owner with a company, a family trust, an SMSF and children from two relationships. We will tell you which you are at the first appointment, and quote accordingly.
Frequently asked questions
Under section 10 of the Succession Act 1981 (Qld), a will must be in writing and signed by the will-maker, with that signature made or acknowledged in the presence of two or more witnesses who are present at the same time. Those witnesses then sign in the will-maker's presence. Avoid using a beneficiary as a witness, because it can void their gift.
Usually not. Superannuation does not automatically form part of your estate, and the fund trustee decides who receives your death benefit unless you have a valid binding death benefit nomination in place, or you have directed the benefit to your legal personal representative. This is the most common and costly misunderstanding in estate planning.
Under SIS Regulation 6.17A, a binding death benefit nomination generally ceases to have effect three years after it was signed, unless the fund's rules provide otherwise. Some funds now offer non-lapsing nominations, and the three-year rule does not apply to self-managed super funds, though that depends on the fund's trust deed. Check the date on your current nomination.
Your estate is distributed under the intestacy rules in Schedule 2 of the Succession Act 1981 (Qld). A surviving spouse with no children takes the whole residuary estate. A spouse with one child takes the household chattels, the first $150,000 and half the residue; with two or more children, the first $150,000 and one third. Without a spouse or children, the estate passes to parents, then siblings, then more remote relatives.
Only if the relationship meets the statutory test. Under section 5AA, a de facto partner is treated as a spouse on intestacy where the couple lived together on a genuine domestic basis for a continuous period of at least two years ending on the date of death. A partner below that threshold may receive nothing under the intestacy rules and would have to bring a family provision claim.
For a family provision claim, written notice of an intention to apply should be given to the executor within 6 months of the date of death, and the application must be filed in the Supreme Court of Queensland within 9 months of the date of death under section 41(8) of the Succession Act 1981. The court has a discretion to allow a late application, but it should not be relied on.
An executor who distributes more than 6 months after the date of death, without having received notice of an intended family provision claim, is generally protected under section 44(3) of the Succession Act 1981. Distributing earlier, or after receiving notice, can leave the executor personally liable if a claim later succeeds.
They do different jobs. A will operates only after death; an enduring power of attorney operates while you are alive but unable to make decisions. Without one, there is no default decision-maker for your financial affairs, and someone would need to apply to QCAT to be appointed as your administrator. For health decisions Queensland law appoints a statutory health attorney by default, but that may not be the person you would have chosen.
A testamentary trust is created by your will and holds a beneficiary's inheritance rather than paying it out directly. Income distributed to a minor is generally taxed as excepted trust income under section 102AG of the Income Tax Assessment Act 1936, at adult marginal rates with the full tax-free threshold. They suit young children, blended families, vulnerable beneficiaries and larger estates, but carry ongoing administration costs that can outweigh the benefit for a modest estate.
Yes. In Queensland, marriage generally revokes an existing will, and divorce generally revokes gifts to a former spouse and their appointment as executor. Divorce does not happen automatically on separation, and for married couples separation alone does neither, so a person who has separated but not divorced
More information
Whether your assets are modest or of some magnitude, it is important to consider estate planning to protect your family and property on your death.
Wills and estates lawyers Rockhampton
The death of a loved one brings inevitable change. It is therefore important that you have a Will which reflects your up-to-date wishes.
At South Geldard Lawyers our team have experience in all aspects of administering deceased estates. We can undertake the administration on behalf of your executor and provide practical advice to assist your executor in finalising your estate.
If claims are made against your estate or the validity of your Will is challenged, our Lawyers will investigate and advise you on the merits of your case and, if necessary, represent your executor or beneficiaries in resolving the dispute or in Court.
We can also assist with:
- Wills
- Testamentary Trusts
- Discretionary and Unit Trusts
- Business and Estate Planning
- Guardianship Matters
- Powers of Attorney
- Advance Health Directives
- Superannuation
- Deceased Estate Administration (including where there is no Will called Intestacy)
- Applications for Probate or Grants of Administration
- Other Court Applications
- Advising Executors on their Duties
- Advising Beneficiaries on their Rights
- Estate Litigation and Disputes ( including Family Provision Applications)
- Mediations
Extensive Experience
Our professional team has extensive experience in a wide range of legal areas. Our approach is one of planning and involvement. We will continue to be there to support you with accurate and timely advice.
This page is general information about the law as it applies in Queensland, current as at 2026. It is not legal advice and does not take your circumstances into account. Time limits and thresholds change — several figures on this page are indexed annually. Speak to one of our lawyers before acting.
