What to Know About Inheritance Laws in Queensland
Inheritance isn’t just about who gets the vintage watch or the family home; it’s a regulated process governed primarily by the Succession Act of Queensland. This piece of legislation is the backbone of succession law in our state, dictating how estates are managed and distributed. When you are familiar with the laws on inheritance, you can save your family from significant stress and legal “grey areas” down the track.
At Bradley & Bray Lawyers, we meet many Sunshine Coast locals who find themselves at a crossroads - either they are looking at making a Will in Queensland for the first time, or they’ve just lost a loved one and are trying to figure out where they stand. So, today, we’ll help shed light on the topic of inheritance and succession. We’ll break down the essentials below, but for advice tailored to your needs, a personalised consultation is always best.
What Is Succession Law?
If you’ve heard the term but aren’t quite sure what succession law is, think of it as the legal bridge between a person passing away and their assets being legally transferred to the next generation. It covers everything from the validity of a document to the rights of beneficiaries of a Will in QLD.
In Queensland, the law aims to balance two things: your right to choose who gets your assets (testamentary freedom) and the state’s interest in ensuring your dependants are properly looked after.
The Power of a Valid Will
The most straightforward way to inherit assets is through a validly executed document. Under the succession law in QLD, a Will generally needs to be in writing, signed by the “testator” (the legal term for a will-maker) and witnessed by at least two people.
Testamentary Capacity: Protecting the Vulnerable
For a Will to be valid, the person making it must have the mental capacity to understand their decisions.
The Dementia Challenge: We frequently deal with contested Wills where family members believe a loved one didn’t understand a new Will’s consequences.
Undue Influence: This occurs when someone is pressured or coerced into changing their Will.
It’s recommended to have a “Medical Assessment of Capacity” on or close to the day of signing to create a shield against future challenges.
Informal Wills: Can a Text Message Count?
Queensland’s Supreme Court has a “dispensing power” under Section 18 of the Succession Act (QLD). This means they can sometimes recognise a document that doesn’t meet the formal legal requirements. Courts have accepted unsent text messages, notes on an iPhone, or even video recordings as valid Wills, but proving these in court can be incredibly expensive. It is always safer to have a professionally drafted document.
Dying Without a Will: The Intestacy “Formula”
Without a valid Will, you die “intestate.” The courts then follow a rigid, pre-set formula to distribute your estate.
Where the deceased has children, a spouse receives the first $150,000 and the household chattels. The remainder is split between the spouse and children. This can often force the sale of a family home.
This can also leave de facto partners in a difficult position as they won’t be considered to be a spouse if they haven’t yet met the two-year “genuine domestic basis” requirement.
The Safety Net: Family Provision Applications (FPAs)
Even if a Will is technically valid, the law doesn’t allow a Will-maker to unfairly “cut out” those they have a moral duty to support. This is known as a Family Provision Application (FPA).
Who Can Claim? Under family inheritance law in QLD, only three categories are eligible: a spouse (including de facto), a child (including biological, adopted, and step-children), or a dependant (someone wholly or substantially maintained by the deceased, such as a parent or a minor child).
The Grounds: You must prove that the Will failed to make “adequate provision” for your proper maintenance and support. The court considers your financial needs, the size of the estate, and your relationship with the deceased.
The Strict Deadline: Time is of the essence. You must give the Executor written notice of your intention to claim within 6 months of the date of death, and the formal application must be filed in court within 9 months of the date of death.
Rights of Beneficiaries: What Are You Owed?
If you are named in a Will, you aren’t just a passive observer; you have enforceable rights. The Executor has a “fiduciary duty” to you - a high legal standard requiring them to act with absolute honesty and in your best interests.
The Statutory Right to Information: Under Section 33Z of the Succession Act (QLD), you have a legal right to inspect and receive a certified copy of the Will. This right also extends to anyone named in an earlier Will or anyone who would have inherited if there were no Will (next of kin).
The Right to an Accounting & Inventory: You are entitled to a clear “paper trail.” This includes an inventory of assets and liabilities at the date of death and a final statement of transactions before the estate is closed.
The “Executor’s Year”: Generally, you have a right to receive your distribution within 12 months of the date of death. If it takes longer without a valid reason (like complex litigation), you may have grounds to compel the Executor to act.
The Right to Impartiality: If there are multiple beneficiaries, the Executor cannot play favourites. They must act impartially, especially regarding asset valuations and the timing of payments.
New Frontiers: Protecting Digital Assets
As a Sunshine Coast law firm, we’re seeing a massive shift in what people leave behind. Succession law in Queensland is evolving to keep up with the “cloud.”
Your Queensland Wills now need to account for digital assets or those assets without a physical paper trail:
Financial Value: This includes cryptocurrency wallets, PayPal balances, or monetised online businesses. Without a Digital Assets Clause and private key instructions, these can be lost forever.
The “Digital Lockout”: Privacy laws often prevent companies like Apple or Google from handing over account access to family. It is recommended to set up “Legacy Contacts” within apps now and reference them in your Will.
Key Takeaways for Sunshine Coast Residents
Update Regularly: Life changes like marriage or divorce can automatically revoke parts of your Will.
De Facto Rights: These are strong in QLD, but documentation is key to avoiding a court battle.
Professional Guidance: Making a Will in Queensland with a solicitor ensures you avoid the “informal Will” trap and protect your digital legacy.
Succession and inheritance laws in Australia can feel like a maze. At Bradley & Bray, our succession lawyers provide the expert, local insight you need to ensure your legacy - and your family - is protected.
Frequently Asked Questions (FAQs)
Dealing with succession law can be overwhelming, especially when you’re grieving. Here are the most common questions our team at Bradley & Bray hears from Sunshine Coast residents:
1. Is there an “Inheritance Tax” in Queensland?
The short answer is no. Australia abolished “death duties” decades ago. However, while there is no direct tax on the money you inherit, there are “knock-on” tax implications:
Capital Gains Tax (CGT): If you inherit a property or shares and later sell them, you may be liable for CGT on the increase in value.
Income Tax: Any income generated by inherited assets (like rent from an investment property or dividends from shares) must be declared on your tax return.
Superannuation: Tax may apply if a “non-dependant” (like an adult child) receives a superannuation death benefit.
2. Who pays for the funeral?
In Queensland, funeral expenses are considered a priority debt. This means they are generally paid out of the estate’s funds before any other debts or inheritances are distributed.
Pro Tip: If the deceased had a bank account in their name only, most banks will release funds directly to a funeral director upon presentation of an invoice - even before Probate is granted.
3. What’s the difference between Probate and Letters of Administration?
Both are Supreme Court orders that “unlock” an estate, but they are used in different scenarios:
Grant of Probate: This is used when there is a valid Will and a named Executor who is willing and able to act. The court confirms the Will is valid and gives the Executor the green light.
Letters of Administration: This is used when there is no Will (intestacy) or if the named Executor has passed away or refuses to act. In this case, the court appoints an “Administrator” (usually one of the residuary beneficiaries) to manage the estate.
4. Can I be paid for being an Executor?
Being an Executor is a lot of work. Under the succession law in Queensland, you are entitled to be reimbursed for all “out-of-pocket” expenses (like court filing fees or property maintenance). However, you aren’t automatically paid for your time unless the Will specifically says so. If the Will is silent and the work is particularly complex, you can apply to the Supreme Court for “Executor’s Commission,” but this is usually a last resort.
5. What if the Executor dies before the person who made the Will?
This is why we always recommend appointing a “backup” or substitute Executor when making a Will in Queensland.
If your primary Executor passes away while you are still alive, you should update your Will immediately.
If you pass away and your primary Executor is already deceased (and there’s no backup), a beneficiary will usually need to apply for Letters of Administration with the Will Annexed.
We’re Here to Help
Inheritance laws are rarely simple. Whether you are an Executor feeling the weight of your duties or a beneficiary wondering about your rights, Bradley & Bray is here to help. We combine professional legal expertise with the personal, relatable service you’d expect from a local firm.
Contact us today to schedule a consultation.
Disclaimer: This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers take no responsibility for any use of the information provided in this article.
