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Last Will & Testament FAQs

Read our frequently asked questions about last wills and testaments. If your question isn't answered below feel free to contact us.

What do I do if I cannot locate a will?

In terms of the funeral, discuss funeral arrangements with relatives of the deceased and reach a mutual agreement as to its arrangement.

In terms of the administration of the estate, the lack of a will means the estate will be considered to be intestate. This means that legislation will govern the manner in which the estate can be distributed and certain organisations, such as banks, may require a legal document known as letters of administration to be provided to them before they will close any accounts.

If you cannot locate a will and you have been advised that letters of administration are required, we recommend you liaise with a solicitor to assist you in obtaining this legal document.

What do I do if I can only find a copy of the will?

If only a copy of the will can be found, it may be necessary to file an application with the Supreme Court of Queensland. The justices of the court will review the copy and make a determination as to whether the copy can be held to be the last will and testament of the deceased.

If you can only find a copy of the will, we recommend you liaise with a solicitor to assist you in preparing the necessary application.

If the will appoints more than one executor, do we have to make decisions jointly?

Unless the will specifically states anything to the contrary (e.g. that the decisions of the executors are to be by majority), all decisions must be joint decisions.

What do I do if the will appoints an executor who has already passed away?

If the will appoints more than one executor, the surviving co-executor will automatically continue the administration of the estate. The only documentation the co-executor will require to continue the administration of the estate is a certified copy of the death certificate for the executor who has passed away. You will require such a document as institutions, such as banks, will need proof of the passing of the executor.

If the will appoints only one executor in the first instance, the administration of the estate will automatically fall to the back-up executor if one has been nominated. Similar to the above, the only documentation the back-up executor will require to continue the administration of the estate is a certified copy of the death certificate for the executor who has passed away.

If the will fails to provide for a co-executor or a back-up executor, it will be necessary to obtain letters of administration of the will in order for the estate to be administered. In this regard, we recommend you liaise with a solicitor to assist you in obtaining this legal document.

What do I do if an executor has lost capacity?

If an executor has lost capacity and is therefore incapable of administering the estate, the position of that executor can be renounced and any co-executor or back-up executor will automatically continue the administration of the estate. The only documentation the co-executor or back-up executor will require to continue the administration of the estate is evidence of the incapacity of the executor, such as a medical certificate from the executor’s local general practitioner. You will require such a document as institutions, such as banks, will need proof of the incapacity of the executor.

If the will fails to provide for a co-executor or a back-up executor, it will be necessary to obtain letters of administration of the will in order for the estate to be administered. In this regard, we recommend you liaise with a solicitor to assist you in obtaining this legal document.

What do I do if I do not want to be the executor?

Even if you have been named as an executor in a will, it is not mandatory for you to accept such a role. If you feel that undertaking the role of executor is, for example, too difficult or time-consuming, you can choose to renounce your position (view the executors checklist).

If you choose to renounce your executorship, the person or persons named as co-executor or back-up executor will automatically continue the administration of the estate. The only documentation the co-executor or back-up executor will require is a written letter confirming your renouncement.

If you choose to renounce your executorship and the will fails to provide for a co-executor or a back-up executor, it will be necessary to obtain letters of administration of the will in order for the estate to be administered. In this regard, we recommend you liaise with a solicitor to first discuss your desire to renounce. If it is agreed that renouncing is the most appropriate course of action and an alternative person is willing to accept the role of administering the estate, the solicitor can then assist you in obtaining this legal document.

If you're looking for an experienced Gold Coast estate lawyer or need help with will related matters contact ABKJ.

Wills & Estate FAQs