QLD Wills and Estate Planning Rights - Public Trustee Holds Will

[anyboby]

My husband has been named also along with his brother in a will to share 50/50 what i would like to know if either one died what happens to his share in a will. Will his children be able to claim his share this will is held with the public trustee? Just like to know my children have a right to their father's share. Thank you for taking the time to read.

 

[Sarah J]

Hi Cindy,

This will depend on the wording of the will itself. Does the will make any arrangements for what would happen if one of the named beneficiaries cannot receive under the will (e.g. predeceases)?

If not, it will depend on whether the shares are distinctly divided between the two beneficiaries (i.e. something along the lines of "50% of X to person A and 50% of X to person B") or not distinct (i.e. something along the lines of "I give X to person A and person B equally). If it is the second one, when person B dies, person A may have 100% of X.

If it is more like the first, then the general rule is that the 50% share then lapses. This means, it is considered not accounted for by the will-maker ("testator") and it is distributed according to statute under intestacy rules which is listed in the Succession Act 1981 (QLD) (start with Division 2 of the act).

 

[anyboby]

thankyou sarah for you speedy reply so real my children will get nothing if there father dies this is why she is in public trustee care because of money hungary other brother .she has stated she gifts 50% each whatever she owns brother A and to brother B she has stated there names in the will she is under public trustee care and adult guadian but she made her will the dr cerf stating she understands but i dont thinks she really understand as the other keeps tell her they will sell her house every time the adult guardian is up for review and we have to reasure her each time as do the carers as she makes herself sick with worry. thanks for your time.
cheers

 

[anyboby]

sorry i mean really, and also the other is i meant to say brother and wife

 

[praxidice]

thankyou sarah for you speedy reply so real my children will get nothing if there father dies this is why she is in public trustee care because of money hungary other brother .she has stated she gifts 50% each whatever she owns brother A and to brother B she has stated there names in the will she is under public trustee care and adult guadian but she made her will the dr cerf stating she understands but i dont thinks she really understand as the other keeps tell her they will sell her house every time the adult guardian is up for review and we have to reasure her each time as do the carers as she makes herself sick with worry. thanks for your time.
cheers

My advice as a layperson who has dealt with the Public Trustee / Public Guardian is to do whatever is necessary at the earliest possible time to remove the estate from their control. Personally I wouldn't wish the Public Trustee / Public Guardian on my worst enemy. The employees I've encountered from both entities are unbelievably arrogant, inveterate liars, intentionally deceptive bloodsucking parasites who will say and do absolutely anything to get their grubby claws into the victims money. Once they have control of a victims money and / or assets, its inevitable the proceeds will be invested in some extremely poorly performing (read loss-making) investment fund. The only reason the antics of these evil enterprises hasn't been headline news is the very carefully imposed cloak of secrecy designed to prevent disclosure of the ineptitude / mis-management. To add insult to injury, the fees levied for MIS-managing a victms financial affairs are up to five times those charged by commercial lawyers (and I've yet to find one of that breed even distantly related to Father Christmas). I pity the folk who get sucked in by Public Trustee advertisments for 'free' will preparation, obviously they weren't shown the section specifying the Public Trustee as executor, nor the section on fees (again up to five times the commercial rate). But those aren't by any means the only problems, even when some of the victims funds are left after mis-management and fees, far too often the Public Trustee stuffs around for years (with more fees imposed) before handing whats left to those entitled to it.

 

[Sarah J]

I would speak with the will-maker. If the will doesn't already contain a provision, get the will-maker to amend the will with a "codicil" (amending document) that says something to the effect: in the event person X and/or person Y predeceases me or cannot receive under this will for whatever reason, their share under this testament will gift to the predeceased beneficiary's child/children in equal shares and should that child, or any of their children, not attain the age of 18 at the time of my death, that child's share will be held by their surviving parent/s or legal guardian on trust until they are 18...

 

[Sarah J]

It is ALWAYS recommended, when writing a will, to include a lapse clause, so if the main beneficiary cannot receive the gift for whatever reason (e.g. predeceases) a secondary beneficiary is named in the will to take the gift and bypass intestacy rules. Additionally, it is good to have a residuary beneficiary who gets any gift that lapses or is unaccounted for.

Can you, or your husband, speak with the will-maker and ask them to make an amendment?