Wills, Powers of Attorney and Probate: What Every Adult on the Gold Coast Actually Needs to Know
If you ask most people whether they have a will, the conversation usually goes one of two ways. Either they say yes and assume that covers everything, or they say no and follow it up with some version of “I know, I know, I really need to sort that out.”
What almost nobody says is that they fully understand the difference between a will, a power of attorney and probate, or why each one matters at a completely different point in their life.
At QC Law, our estate team has these conversations every single day. And the most important thing we can tell you is this: the documents that protect you while you are alive are just as critical as the ones that protect your family after you are gone. Most people only think about the latter.
Here is what you actually need to know.
The Difference Between a Will and a Power of Attorney
These two documents are constantly confused, and it is easy to understand why. Both feel like they belong in the same “legal admin” category, and many people assume that having one covers them for both.
They do entirely different things.
A will comes into effect only upon your death. It records your wishes about who receives your assets, who you appoint as executor to carry out those wishes, any funeral or burial preferences, guardianship arrangements for children, and any charitable gifts or specific bequests you want to make. Until you pass away, your will sits in a drawer, doing nothing.
A power of attorney operates while you are alive. More specifically, an enduring power of attorney gives someone you trust the legal authority to make decisions on your behalf if you become incapacitated. That means financial decisions, personal decisions such as where you live, and health decisions.
If you are in a coma tomorrow, your will is irrelevant. What matters is whether you have an enduring power of attorney in place, and whether the person named in it is equipped to act on your behalf. Without one, your family may have to go through a formal application process just to manage basic things like paying your bills or making decisions about your medical care.
Our view at QC Law is that the power of attorney is every bit as important as the will. For some people, it is more important.
What a Power of Attorney Actually Covers
An enduring power of attorney in Queensland can cover three categories of decision-making: financial, personal, and health.
Financial matters are what most people imagine: managing bank accounts, paying bills, handling investments and dealing with property. But personal and health decisions go far beyond that.
Personal matters include decisions about where you live. This becomes critically important when someone needs to move into aged care. If you have strong preferences about which facility you go to, or whether you want to be near a particular person or community, you can include those instructions in your power of attorney document. Without one, those decisions fall to whoever is legally appointed to make them, which may not be the person you would have chosen.
Health matters cover any medical decision you could lawfully make for yourself, from treatment choices to end-of-life care.
One thing many clients do not realise is that you can appoint different people for different areas. You might want a family member who is a medical professional to handle health decisions, but a different person who is more organised with finances to manage the financial side. You are not locked into choosing the same attorney for everything.
You can also decide when the power of attorney takes effect. It can be immediate or triggered only on loss of capacity, as certified by one or two doctors, depending on your preference.
Why Everyone Over 18 Needs These Documents
There is a common misconception that wills and powers of attorney are only for older people or for people with significant assets. This is simply not true.
Consider this: if you are 25, you probably do not own a home. But you might have a car, some superannuation, savings and very strong opinions about what you would want to happen if you were in an accident and could not speak for yourself. Without a will and a power of attorney, none of those wishes is legally documented.
We had a case at QC Law involving a young man who passed away in his twenties without a will. He had a vehicle, some superannuation from his job, and no instructions. His parents had to go through letters of administration to access his estate. The process was long, drawn out and deeply distressing for a family already dealing with grief. They did not even know whether he wanted to be buried or cremated. That uncertainty added to the pain of an already devastating situation.
A simple will would have cost far less than the legal process that followed, and it would have given his family clarity at the worst possible time.
Choosing Your Executor: It Is Not Automatic
One of the most common surprises for clients sitting down to prepare a will is learning that their spouse or partner is not automatically their executor. It is a choice you make, and it is one of the most important choices in the document.
An executor is responsible for carrying out the instructions in your will. That includes organising the funeral, gathering your assets, paying any debts and distributing what remains to your beneficiaries. It is a real responsibility, and not everyone is suited to it.
You can appoint a beneficiary as executor. You can appoint joint executors. You should also appoint a backup executor in case your first choice is unable or unwilling to act when the time comes. We have seen estates where both executors had passed away before the will maker, and the estate had to go through letters of administration because no backup had been named.
The right executor is someone who is organised, trustworthy, available and capable of dealing with financial and administrative matters under pressure, often while also grieving.
When Is Probate Required?
Probate is the formal process by which the Supreme Court validates a will and authorises the executor to administer the estate. Not every estate requires it, but many do, and understanding when it is needed can save significant time and confusion.
Generally speaking, probate is more likely to be required when the estate includes property held in the deceased person’s sole name, when the value of assets in individual accounts exceeds bank thresholds (which vary by institution, typically between $20,000 and $50,000), or when there is any potential for dispute among beneficiaries.
Jointly held assets, such as a property owned as joint tenants or a bank account in joint names, do not pass through the will at all. They transfer automatically to the surviving joint owner through the right of survivorship. In those situations, probate may not be necessary even for a substantial estate.
When probate is required, the process takes time. An advertisement must be placed in the Queensland Law Reporter, which is published every second Friday. After the advertisement appears, you must wait at least 14 days before lodging the application, to allow creditors to come forward. The Supreme Court then processes the application, and registries can take anywhere from eight to twelve weeks or longer, depending on workload.
Letters of Administration: When There Is No Will
When someone dies without a will, the estate is described as intestate, and letters of administration must be obtained instead of probate. The rules governing who inherits are set by Queensland law, not by the deceased's wishes.
Letters of administration are also required in certain situations, even when a will exists, for example, when all named executors have died, when an executor formally renounces their role, or when the executor is incapacitated.
The intestacy rules can produce outcomes the deceased person would never have wanted. Under Queensland law, a de facto partner of even a relatively short duration may be entitled to $150,000 from the estate before other beneficiaries receive anything. Family members who had no relationship with the deceased may be legally entitled to a share of the estate. Estranged relatives can appear from nowhere.
A valid, current will is the only way to ensure your estate is distributed the way you intend.
Do Not Put It Off
We understand that writing a will feels like confronting something people would rather not think about. But the risk of not having one is far greater than the discomfort of sitting down and getting it done.
At QC Law, we make the process as straightforward as possible. We ask the right questions, work through the complexity of your specific situation (and in 2025, most family situations are complex), and make sure the documents you leave behind actually do what you need them to do.
If you are over 18 and you do not have a current will and an enduring power of attorney in place, contact our estate team on the Gold Coast today. It is one of the most important things you can do for the people you care about.
Contact QC Law: epost@qclaw.com.au | 07 5657 1928
