Understanding a will

There is no rush here. If someone close to you has died, it is fine to let the practical questions wait a few days. This guide is general information about wills in Queensland. It is here for when you are ready.

What this usually means

A will is a written set of instructions. It says who should look after the estate, and who should receive what. The estate is everything the person owned, less what they owed.

In Queensland, a will must usually be in writing and signed by the person who made it. They must sign, or acknowledge their signature, in front of at least two witnesses who are there at the same time. At least two of those witnesses then sign too.

The will names an executor. This is the person, people or organisation who carries out the instructions. They collect what the person owned, pay the debts, and give the rest to the people named. These people are called beneficiaries.

Being named as an executor is an honour, but it is also real work. The Public Trustee says most estates take about 12 months to finish.

A will does not always work on its own. Many banks and other organisations will not release money until the Supreme Court of Queensland has made a grant of probate. Probate is the court's confirmation that the will is valid and the executor may act on it. The next guide, "Sorting out an estate", covers that.

Not every document is a will in the usual sense. A court can sometimes treat a document as a will even if it was not signed and witnessed properly, if the court is satisfied the person meant it to be their will. A lawyer can tell you how likely that is.

What you can do now

1. Look for the original will. Check the person's papers, a safe or a filing cabinet. Ask close family, friends, and their accountant or lawyer. Some people leave their will with a solicitor or with the Public Trustee.
2. Do not alter, remove staples from, or write on it. Keep the original safe. A photocopy can help, but the original is what the court usually wants.
3. Ask to see it. Under the Succession Act 1981 (Qld), anyone holding a will must let an "entitled person" see it or give a certified copy, if asked. That includes a person mentioned in the will, a spouse, a parent or a child of the person who died. If the original is lost, the holder of a copy must also let you see or copy that.
4. Check the court. The Supreme Court of Queensland holds wills only if they were filed with a grant application. You can search for basic details free. The court cannot say whether a will is the most recent one.
5. If you are the executor, you do not have to say yes. The Public Trustee says you are under no legal obligation to take the role on. If you are unsure, talk to a lawyer or the Public Trustee before you start paying bills or moving property.
6. If there is no will, or you cannot find one, the estate is dealt with under a different set of rules. The next guide explains them.

Time limits

There is no fixed limit for finding a will or for deciding whether you will be executor. But some things do run on a clock. If you think you might have a claim because you were left out, a short deadline applies. See "I was left out of a will". It is worth reading that sooner rather than later, even if you are not ready to act.

A funeral and the registration of the death have their own timing, which the funeral director usually handles.

If it goes further

Most wills are read, followed and finished without any court fight. Sometimes people disagree about whether a will is valid, what it means, or whether it is fair.

The Supreme Court of Queensland can decide disputes about wills. It can also decide whether a document counts as a will. If you are in this position, speak to a lawyer early. Legal Aid Queensland says its civil law scheme may help some people with a claim about a will or estate.

Questions to ask whoever helps you

• Is this the most recent will, and how can I be sure there is not a later one?
• Do I have to apply for probate, or can this estate be dealt with without it?
• If I am the executor, what am I personally responsible for?
• Can I say no to being the executor, and what happens then?
• If I think the will is unfair to me, is there a deadline I should know about now?