Are You a Beneficiary of a Will? Know Your Rights [QLD]

Are You a Beneficiary of a Will? Know Your Rights (QLD)

Beneficiaries are individuals or legal entities that receive a gift or inheritance from a will. A beneficiary of a will has certain specific legal rights to ensure that their inheritance is duly managed and transferred to them in accordance with the terms of the will.

Obtaining a copy of the Will

Section 33Z of the Succession Act (Qld) 1981 states that the person who holds either the original or a copy of the will must allow:

  • any beneficiary of a will or other person mentioned in the will or any previous will of the deceased
  • a spouse, parent or child of the deceased,
  • any person (or their guardian) who would be entitled to an inheritance under the laws of intestacy, or
  • a creditor who has a claim against the estate,

to inspect the will or obtain a certified copy of it. (Where a certified copy is obtained, reasonable costs should be paid by the person obtaining the copy.) It doesn’t matter if the validity of the will has not been confirmed or if the will has been revoked.

When does my inheritance become mine?

A beneficiary of a will does not own any property gifted to them in the will until the executor distributes the estate and formally transfers it to them. Until that time, all assets in the estate remain the legal property of the executor. However, they are held on trust for the beneficiaries.

However, jointly held property (such as joint bank accounts or jointly held real estate) pass automatically to the surviving holder, and do not form part of the estate and do not come under the control of the executor.

What is required of the executor?

Executors must not act in their own interests. They owe beneficiaries a duty to act in the beneficiaries’ best interests and the best interests of the estate. This involves:

  • distributing the estate in accordance with the terms of the will,
  • protecting and preserving the value of assets in estate until they are distributed,
  • keeping records of all actions carried out on behalf of the estate, and
  • obtaining professional advice where necessary.

A beneficiary of a will has a right to an accounting of the estate. They may also object if an executor is not carrying out the wishes of the deceased as provided by the will.

However, beneficiaries do not have the right to question decisions of the executor simply because they do not agree with them.

How long will it take to finalise the estate?

The first task of the executor of a will is to obtain a grant of probate of the will. If application for probate has not been made by an executor within 6 weeks of the death of the deceased, the executor may have to provide a reasonable explanation to the court as to why not.

Executors are generally unable to make distributions from the estate for the first 6 months, in case a family provision claim is made, and a beneficiary of a will is unable to compel an executor to distribute the estate within the first 12 months from the date of death. However, if monetary gifts are distributed after 12 months, interest is payable on the gift at a set statutory rate.

What if the executor of a will fails to do their job?

If the executor is not putting the interests of beneficiaries first and is not carrying out their role diligently, the beneficiaries may apply to the court to remove the executor and have another appointed in his or her place. Such applications may only be made before distribution of the estate.

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