Wills Lawyers Brisbane: protect your legacy
Clear, plain-English Wills and estate planning for professionals, parents and business owners living on Brisbane’s Northside. From simple Wills to testamentary trusts, we help you get it right the first time so those you love aren’t left guessing in a difficult time.
A Will is not a document you write for yourself. It is the instruction manual your family Will read on one of the worst weeks of their lives. If a Will is unclear, out of date or legally invalid, you risk leaving your loved ones with a problem you did not mean to create.
Kelly Lawyers is a law firm based in Ascot on Brisbane’s Northside, serving Ascot, Hamilton, Clayfield, Nundah, Banyo, Nudgee, Kedron, Stafford, Chermside and surrounding suburbs.
Our Wills lawyers expertly draft Wills that are valid under the Succession Act 1981 (Qld), that reflect your actual life circumstances (blended families, SMSFs, business interests, minor children) and that pair with enduring powers of attorney and advance health directives so the full picture is covered. The Public Trustee of Queensland has long reported that roughly one in two Queensland adults die without a valid Will, which means the state legislation decides who and how your estate is divided. We exist to move you forward, and that starts with making sure your wishes are the ones that get followed.
What a Will is and why you need one
If you are buying an investment property, the structure of the purchase matters as much as the property itself. Buying in the wrong name is expensive to fix after the contract is signed because Queensland transfer duty can be payable again on a later transfer between related parties.
Common structures we help Brisbane investors consider, in conjunction with their accountant, include:
- Personal name or joint names: for straightforward investments where the buyer is in a stable tax position.
- Family or discretionary trust: for asset protection, flexibility in distributing rental income and capital gains, and estate planning.
- Self-managed super fund (SMSF): where the buyer wants the asset held inside superannuation. These have strict rules under the SIS Act and specific conveyancing requirements, particularly around the limited recourse borrowing arrangement.
We work with your accountant or financial adviser to make sure the contract is signed in the correct name and that any bare trust or custodian deed is in place before, not after, the contract date.
Legal requirements for a valid will in Queensland
A Queensland Will must comply with section 10 of the Succession Act 1981 (Qld). The formal requirements are clear, and getting any of them wrong can invalidate the document. Our lawyers specialising in preparing Wills in Brisbane work through each of these requirements with you to ensure your Will is compliant and capable of being upheld.
- The Will must be in writing.
- It must be signed by the Will-maker (the testator), or signed by someone else at their direction and in their presence.
- The signature must be made or acknowledged in the presence of two or more witnesses who are present at the same time.
- Each witness must then sign the Will in the presence of the testator, but they do not need to be in the presence of each other.
- A witness (or their spouse) should not be a beneficiary, or the gift to that beneficiary may fail under section 11 of the Act.
Where there is a question as to cognitive capacity to make a Will, for example due to age, illness or medication, additional evidence of capacity taken close to the signing date can make the Will less likely to be subject to challenge later, and we will discuss the right approach with you.
Types of Wills we prepare
There is no one-size-fits-all Will. The right structure depends on your family, your assets and what you want to protect against. Our experienced lawyers take the time during the initial consultation to listen and understand your unique family circumstances, your assets and liabilities and your wishes regarding how you wish for your legacy to be dealt with.
Simple Wills
A simple Will suits straightforward situations: a long-term relationship, children from that relationship only, modest and uncomplicated assets, and beneficiaries who are adults and financially capable. It names an executor, leaves specific gifts and divides the residue of the estate.
Testamentary Trust Wills
A testamentary trust will create one or more trusts that only come into existence when you die. Your beneficiaries receive their inheritance through the trust rather than directly. This structure can offer significant tax advantages for distributions to minor beneficiaries, asset protection for beneficiaries in high-risk occupations or difficult relationships, and ongoing control where a beneficiary is young, vulnerable or not yet ready to manage a large sum.
Mutual Wills
Mutual Wills are used by couples (often in a second marriage or blended family) who want to bind each other to a shared estate plan. They involve a contract between two parties as well as the Wills themselves, so that the surviving partner cannot later change their Will and cut out the other family members. They are powerful, but they remove flexibility, so we only recommend them when the facts and circumstances truly call for it.
International assets and foreign Wills
If you hold property, investments or superannuation overseas, a single Australian Will can sometimes create problems with foreign probate or forced heirship rules. In those cases, a coordinated approach with advisors in the relevant jurisdiction may be needed so your Australian and overseas assets are dealt with cleanly.
When a Testamentary Trust actually matters
Testamentary Trusts are powerful, but they are not always necessary. We recommend one where at least one of these is true.
- You have minor children. Distributions to minors through a testamentary trust can be taxed at ordinary adult marginal rates rather than the high penalty rates that apply to most income received by children, under section 102AG of the Income Tax Assessment Act 1936.
- You have blended family circumstances. A trust lets you provide for a new spouse during their lifetime while preserving capital for children from a previous relationship.
- A beneficiary is in a high-risk occupation (for example a director, medical practitioner or business owner) and asset protection matters.
- A beneficiary has a history of relationship breakdown, addiction or poor financial decisions, and a trustee-controlled structure is safer than an outright gift.
- You have a self-managed super fund (SMSF), a family trust or a business interest that needs structured handling, not a simple transfer.
- The estate is large enough that the cost of the trust structure is justified by the tax and protection benefits.
If none of those circumstances apply, a well-drafted simple Will is usually the right answer. We tell you straight which you need.
Seven life events that should trigger a Will update
A Will is not a set-and-forget document. Under Section 14 of the Succession Act 1981 (Qld), marriage generally revokes an existing Will (except to the extent it was made in contemplation of that marriage), and under Section 15 divorce or termination of a civil partnership revokes gifts to and the appointment of a former spouse. Beyond those automatic changes, we recommend reviewing your Will whenever one of the following happens.
- You marry, enter a civil partnership or start a de facto relationship that has or is close to having legal status.
- You separate, divorce or end a civil partnership or de facto relationship.
- You have a child, adopt a child or take on the care of a child.
- A beneficiary or executor dies, becomes estranged, loses capacity or moves overseas.
- You buy or sell a significant asset (a home, a business, an investment property, an SMSF interest).
- Your financial position changes materially, either up or down.
- Relevant law changes (superannuation, tax, succession) can affect how your will operates, and a review is sensible when they occur.
As a rule of thumb, review your Will every three to five years even if nothing on the list has happened.
What happens if you die without a Will in Queensland
If you die without a valid Will in Queensland, you are said to die ‘intestate’. Part 3 of the Succession Act 1981 (Qld) sets out a fixed statutory order that decides who inherits and in what shares. The order runs roughly as follows, with the full detail in Schedule 2 of the Act.
- If you leave a spouse and have no issue (children, grandchildren), the spouse receives the whole estate.
- If you leave a spouse and have an issue, the spouse receives the first $150,000, the household chattels and a share of the residue. The issue take the rest in defined proportions.
- If you leave issue but no spouse, the estate passes to the issue in defined proportions.
- If you leave no spouse and no issue, the estate passes to parents, then siblings, then more distant relatives in a set order.
- If no eligible relatives can be found, the estate passes to the State of Queensland as bona vacantia.
The intestacy rules are rigid. They do not account for blended families, step-children who were not legally adopted, close friends, charities you cared about or carers who supported you for decades. They also do not appoint a guardian for your children, so that decision falls to the court. Dying intestate also usually means a longer and more expensive administration process, because Letters of Administration must be obtained from the Supreme Court of Queensland before anything can be distributed.
Choosing and supporting your executor
Your executor is the person (or people) who will carry out the terms of your Will. They apply for probate, collect your assets, pay your debts and tax, and distribute your estate. It is a legal role with real obligations, not just a formality.
A good executor is someone who is.
- Trusted by you and by your family.
- Organised enough to deal with banks, superannuation funds, the ATO and (often) the Supreme Court of Queensland Probate Registry.
- Likely to outlive you, or at least able to be replaced by a sensible alternative.
- Willing and able to say ‘no’ to family pressure where the Will requires it.
- Able to act impartially, particularly in a blended family situation.
You can appoint more than one executor (they must usually act jointly), and you should always appoint at least one substitute executor in case your first choice cannot act. Many of our clients appoint a child who lives locally alongside an independent professional to balance family knowledge with neutrality. We explain the role fully to whoever you nominate so they understand what they are agreeing to.
Digital assets in your Will
Most Queensland Wills written more than a decade ago are silent on digital assets, and many newer ones still miss them. Your digital estate can include significant financial assets (cryptocurrency wallets, online trading accounts, PayPal balances), sentimental assets (photo libraries, social media accounts, cloud storage), and business assets (domain names, online shops, client lists).
A separate, secure digital assets inventory can sit alongside your Will, listing your accounts, each platform’s succession process (where one exists) and who you want to have access. The Will itself grants your executor authority to deal with those assets. Passwords should never be written into the Will itself, because the Will becomes a public document once probate is granted.
Storing your Will safely
A Will that cannot be found when you die is, in practical terms, no Will at all. If the original cannot be located, the presumption at common law is that the will-maker destroyed it with the intention of revoking it, which means your estate may be administered as if you died intestate.
We recommend the following.
- Keep the original with the law firm that drafted it, or in another secure location such as a bank safe deposit box. Do not keep the original loose at home where it can be lost, damaged or destroyed.
- Keep a signed copy at home in a sealed envelope marked clearly as a copy, noting where the original is stored.
- Tell your executor where the original is stored, or better still give them your law firms contact details.
- Never staple, clip or attach anything to the original after signing. Additional holes or attachment marks can raise questions at probate about what was attached and later removed.
Pair your Will with an EPOA and Advance Health Directive
A Will only takes effect after you die. It does nothing for you while you are alive but lose capacity through illness, injury or age. To cover that gap, Queensland law allows two other documents that we usually prepare alongside a Will.
Enduring power of attorney (EPOA)
An EPOA, made under the Powers of Attorney Act 1998 (Qld), lets you appoint a trusted person (or people) to make financial and/or personal decisions for you if you lose capacity. Without one, your family may need to apply to the Queensland Civil and Administrative Tribunal (QCAT) for a formal appointment, which is time-consuming and public.
Advance Health Directive (AHD)
An AHD is a Queensland-specific document, also made under the Powers of Attorney Act 1998 (Qld), that records your wishes about future medical treatment. It is particularly important if you have strong views about life-sustaining measures or specific conditions that can be anticipated. Queensland Health provides the official AHD form, and it must be signed by a doctor as well as a witness.
Together, a Will, an EPOA and an AHD form a complete plan: one document covers you if you lose capacity, one covers medical decisions, and one covers what happens after you die.
When Wills are challenged
A valid Will can still be challenged. In Queensland, Part 4 of the Succession Act 1981 (Qld) lets certain people (spouses, children and dependants) apply for ‘further provision’ from the estate if they feel the Will does not adequately provide for them. Applications must generally be made within nine months of the date of death, with notice to the executor within six months.
When we draft your Will, we discuss with you the people who might realistically be able to bring a claim and the ways a Will can be drafted in order to reduce that risk.
How we work
Our approach to every new Will matter follows the same principles we apply across the firm: clear advice, proactive communication and no surprises.
1. Listen to what is happening and what matters most to you
We meet with you to take detailed instructions on your family, your assets, your concerns and anything that has happened in the past that could affect the plan (previous relationships, estranged children, business partners, guarantees).
2. Explain your options in plain English
We explain the realistic options, including whether a simple Will or Testamentary Trust is appropriate, who you should appoint as executor and guardian, and whether an EPOA and AHD should be prepared at the same time.
3. Outline the pathway and confirm the plan
We prepare the documents and send them to you to read in plain English. You can ask as many questions as you need before we book a signing appointment.
4. Sign the documents and keep you updated
You sign the documents in our office in accordance with the witnessing requirements of the Succession Act 1981 (Qld). We then discuss storage options with you and send you signed copies.
How much does a Will cost in north Brisbane?
We provide clear pricing for Wills and estate planning work. The fee depends on whether you need a simple Will, a Testamentary Trust Will, Mutual Wills, and whether an EPOA and AHD are prepared at the same time. Following the initial consultation, we will provide you with a detailed fee estimate in writing before any work starts, so there are no surprises.
A cheap Will that fails a capacity challenge, misses a major asset, or triggers unintended tax consequences is not a saving. It is a much larger problem delayed by 10 or 20 years.
Who we help
Our Will clients are usually in their 40s to 70s and often referred to us by an accountant, financial adviser or a friend who has used us. However, anyone over the age of eighteen (18) years needs a Will. You may be:
- A professional or business owner who has never got around to making a will.
- A young person who has started working, has superannuation and usually, a life insurance component attached to their superannuation.
- A parent of young children who needs to ensure an appropriate guardian appointment and a Testamentary Trust structure.
- Part of a blended family, wanting to provide for a new partner without cutting out children from a previous relationship.
- An SMSF trustee or member who needs the will to work properly alongside the fund’s binding death benefit nomination.
- A retiree reviewing an old will that was prepared before recent life changes (marriage, divorce, grandchildren, a property sale).
- An executor or family member of someone who died without a will, and needs advice on intestacy and Letters of Administration.
If your situation does not fit any of these, call us and we will tell you honestly whether we are the right firm or point you in the direction of someone who is.
Why families across North Brisbane choose Kelly Lawyers for their Will
- Based in Ascot on Brisbane’s Northside, with clients across Ascot, Hamilton, Clayfield, Nundah, Kedron, Stafford and Chermside.
- Established in 1984. Four decades of experience drafting wills that have been tested, probated and defended.
- Plain-English advice. No legalese, no letters you cannot understand.
- Clear pricing quoted in writing before any work starts.
- Integrated estate planning: Wills, EPOAs, AHDs, estate administration and disputes all handled in-house.
What to expect from your first call
We offer fixed-fee initial consultations with no obligation to proceed. In your consultation we will listen to your situation, suggest whether a simple Will or a Testamentary Trust is likely to suit, and outline the next steps. Consultations are available at our Ascot office or by video or phone at a time that suits you.
Wills and estate planning frequently asked questions
Do I really need a lawyer to make a valid Will in Queensland?
Technically, no. A homemade or DIY kit Will can be legally valid under section 10 of the Succession Act 1981 (Qld) if the formal requirements are met. In practice, the Queensland Courts and the Public Trustee of Queensland both see significant numbers of homemade Wills that fail at probate, usually for witness issues, ambiguous drafting, missing assets or capacity challenges. The cost of fixing a failed Will is almost always greater than the cost of drafting one properly.
How often should I update my Will?
At least every three to five years, and immediately after any major life event (marriage, divorce, new child, death of an executor or beneficiary, major asset change). Marriage automatically revokes an existing Will under section 14 of the Succession Act 1981 (Qld) unless the Will was made in contemplation of that marriage.
What happens to my superannuation under my Will?
Super does not automatically form part of your estate. It is dealt with through a binding death benefit nomination made to your super fund, and in some cases through the trust deed of an SMSF. If there is no valid nomination, the trustee decides who receives the benefit. We coordinate your Will with your binding nominations so they work together rather than against each other.
Can my Will include my house if it is jointly owned?
A property held as ‘joint tenants’ passes automatically to the surviving owner by survivorship and does not form part of the estate, regardless of what the Will says. A property held as ‘tenants in common’ passes under the Will. We check how each property is held at your initial consultation, because the title structure changes everything and can easily be changed if needed to carry out your wishes.
What is the difference between a Will and an Enduring Power of Attorney?
A Will takes effect only when you die. An Enduring Power of Attorney takes effect while you are alive, if you lose the capacity to make decisions for yourself. Both are made under Queensland legislation (the Succession Act 1981 and the Powers of Attorney Act 1998), and most clients prepare them at the same time so the plan covers both scenarios.
Can I write my own Will at home and just have it witnessed?
You can, but we do not recommend it. Section 10 of the Succession Act 1981 (Qld) requires two witnesses present at the same time, and section 11 can invalidate a gift to a beneficiary (or their spouse) who witnesses the will. Ambiguous language, missing assets and failure to deal with superannuation, joint property or blended families are the most common problems we see with DIY Wills at probate. The cost of fixing them falls on your family.
Where should I keep my signed Will?
The safest place is with the law firm that drafted it, in secure document storage. The original is the legal document: a copy is not enough on its own. If the original cannot be found at death, the common-law presumption is that the Will-maker destroyed it with the intention of revoking it. Speak with us about storage options when your Will is signed.
What if I already have a Will from years ago? Should I scrap it or amend it?
Bring it in and we will review it with you. Small changes can sometimes be made by a codicil (a short amending document), but in most cases it is cleaner and safer to prepare a new Will that expressly revokes the old one. We quote clear pricing for either approach after a review.
Book a call with our property & conveyancing team
Before you sign a REIQ contract, send a draft to us. We will read it, call you back in plain English and tell you whether it is safe to sign, what to change, and what to watch for. If you have already signed, we can still step in within the cooling-off period, finance date or building and pest date and protect your position.
Kelly Lawyers | Ascot, Brisbane Northside | Servicing Clayfield, Hamilton, Nundah, Kedron, Stafford and Chermside.