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The need for a Will

The law in Queensland relating to wills and intestacy is substantially contained in the Succession Act 1981. This area of law is more easily understood  if the meanings of commonly used words and phrases are clear.

Testator – a man or woman who makes a will. The term testatrix can be used to describe a woman who makes a will.

Dying testate – when a person dies after making a will, that person’s property is distributed according to the wishes expressedin the Will. Such a person is said to have died testate as they have died with a valid will.

Dying intestate – when a person dies without a will, their estate is distributed to their spouse and /or amongst their next of kin as set out in the Succession Act. Such a person is said to have died intestate as they have died without a valid Will.

Partially intestate – if a person dies leaving a valid Will but for some reason part of the will can’t be carried out a person is said to have died partially intestate. For example, if a person leaves their property to their partner and the proceeds of their bank account to their two children in equal shares, but one of those children dies before the testator without leaving children a partial intestacy would arise in relation to the half of the bank account unless the will explained what was to happen if one of the beneficiaries died before the testator.

Estate – property owned by the person at the time of death.

Personal Representative – the person who handles the affairs and distributes the estate of the deceased. A personal representative appointed by a will is known as the Executor. If the will does not appoint a personal reresentative or there is no will then the person is known as the adminstrator.

Beneficiary – a person entitled to either the whole or part of the deceased persons estate.

Probate – the document by which the court recognises the authority of an executor to act under a will. A grant of probate amounts to an official recognition by the court of the right of the personal representatives to adminster the estate of the deceased.

Letters of administration – the document by which a person appoints a person to act as administrator of the deceased estate when there is no will of the deceased or no executor willing and able to apply for a grant;

Codicil – a document to be read in conjunction with the original will. It may delete, add to or in some other way relate to the provisions of the will. It must not conform to all the formalities of a valid will and refer to the original will.

Spouse – a husband or wife, or defacto partners (including same sex partners) as defined in s32DA of the Acts Interpretation Act 1954 (Qld).






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