Why make a Will?

A Will is a legal document providing directions as to the division of your estate (the assets that you hold), upon your passing.

If you pass away without a Will, you are taken to have died “intestate.” This means that your estate will be distributed according to the intestacy rules contained in the Succession Act 1981 (Qld) (“Succession Act”). In other words, you will have no control over the division of your assets.

The intestacy rules for distribution depend upon whether the deceased was survived by a spouse (husband/wife/ de facto partner/ civil partner). Where there is 1 surviving spouse and children:

  1. the spouse will receive $150,000.00, the household chattels and a portion of the residuary (balance estate);
  2. if there is only 1 surviving child- the spouse will receive 1/2 of the residuary estate;
  3. if there is more than 1 surviving child- the spouse will receive 1/3 of the residuary estate.

Where there is no surviving spouse or children, your “next of kin” will receive your estate, being (in order of priority):

  1. your brothers and sisters;
  2. your grandparents;
  3. your aunts and uncles;
  4. your nieces and nephews;
  5. your cousins.

The intestacy rules contained in the Succession Act may not reflect your intention as to the division of your estate. Therefore, in order for you to decide as to the distribution of your estate, it is necessary that you have a valid Will.

We welcome you to contact our office to discuss our competitive fixed fees for your estate planning needs on: (07) 3278 1888. 

Executor’s Commission

Acting as an Executor / Personal Representative for a Deceased Estate is frequently involved and time consuming.

A lot of people don’t know that under section 68 of the Succession Act “the Court may authorise the payment of such remuneration or commission to the personal representative for his or her services as personal representative as it thinks fit, and may attach such conditions to the payment thereof as it thinks fit.”

It is possible when preparing a Will to make an allowance for the Executor(s) to be paid commission as a percentage of the capital and income of the Estate. However, in our experience it is not common for an Executor’s commission clause to be included.

This does not mean that you as an Executor of the Estate will not be entitled to Executor’s commission, but it does mean that you either need the consent of any other Executors and the Beneficiaries or to apply to the Supreme Court for the Court to determine if you are entitled to commission and, if so, how much as a percentage of the capital and / or income of the Estate.

The potential amount which you could receive for Executor’s commission is calculated based upon your “pain and trouble”. There have been a number of cases where Executor’s have applied for Executors commission and where it has been found that they are entitled to the commission. The percentage amount has varied from as little as 1.5% on the capital of the Estate to 5% on the income of the Estate.

If an agreement can be reached about the payment of Executor’s commission this can be finalised by a Deed which all Executors and Beneficiaries sign to confirm that they agree to you receiving Executor’s commission from the Estate.

It can be beneficial to the Estate to consider and agree on a proposal for you to be paid Executor’s commission from the income and capital of the Estate because the costs of an application by the Executors to the Supreme Court are significant and are likely to be recoverable from the Estate itself.

Once the Deed has been signed or an Order made by the Supreme Court, the payment of Executor’s commission will be made first before a partial or final distribution of the Estate occurs.

If you are acting as an Executor and wish to apply for Executor’s commission, Hogan Stanton Lawyers will consider the works you have undertaken as an Executor and provide you with advice as to your potential entitlements to commission. We can prepare a letter to the Executors and Beneficiaries setting out a proposal and, if an agreement is reached, prepare a Deed for the parties to sign.

Alternatively, if no agreement can be reached, we can prepare the application to the Supreme Court for an Order that you receive Executor’s commission for your role as an Executor.

Please note the payment of or an entitlement to Executor’s commission is not the same as being reimbursed for your expenses as an Executor, which you are entitled to provided you can produce evidence of payment of those expenses.