Do You Really Need to Update Your Will When the Property Market Cools? Here’s the Queensland Truth
A cooling property market does not, by itself, make an existing Will invalid or require it to be rewritten. The market value of a home can rise or fall without changing the legal effect of a properly executed Queensland Will.
However, buying, refinancing or selling property is often a useful prompt to review an estate plan. The important questions concern changes to property ownership, mortgage debt, family circumstances, beneficiaries, executors, guardianship wishes and testamentary-trust planning.
A Will should reflect a person’s current circumstances and the assets that may form part of their estate. In Queensland, succession matters are principally governed by the Succession Act 1981 (Qld).
Why buying or refinancing property can justify a Will review
Purchasing a home or investment property may change more than the value of a person’s assets. It can also change:
The way property is legally owned.
The level and structure of secured debt.
The person responsible for mortgage repayments.
The intended beneficiaries of the property or sale proceeds.
The role of a spouse, partner, guarantor or family member.
The need for a testamentary trust.
The person appointed as executor or substitute executor.
A refinance may not change the registered ownership of land, but it can alter the debt secured against the property. It may also occur alongside a transfer of ownership, a change in relationship circumstances or the purchase of another asset.
The practical issue is not whether the market is rising or falling. It is whether the Will and related estate-planning documents still produce the intended outcome if the property owner dies or loses decision-making capacity.
Joint tenants and tenants in common: the distinction that matters
One of the most important property-law questions in Queensland is whether co-owners hold land as joint tenants or tenants in common.
Property held as joint tenants
Where property is held as joint tenants, the deceased owner’s interest generally passes automatically to the surviving joint tenant or tenants by the right of survivorship.
This means the deceased’s interest does not ordinarily form part of the estate controlled by their Will. A Will cannot direct that a jointly owned property interest passes to someone else if survivorship applies.
For example, if a couple owns their home as joint tenants and one person dies, the surviving owner will generally become the registered owner of the whole property. The deceased person’s Will does not usually transfer that interest to their children or other beneficiaries.
The title still needs to be updated after death. This is separate from the question of who inherits the property.
Property held as tenants in common
Tenants in common own defined shares in a property. The shares may be equal or unequal, such as 50/50, 70/30 or another agreed proportion.
A deceased owner’s share generally forms part of their estate and can be dealt with under their Will. The Will should identify the intended beneficiaries and provide a workable direction for dealing with the property or its sale proceeds.
This structure may be relevant where:
The owners contributed different amounts to the purchase.
A person wants their share to pass to children from a previous relationship.
The property is an investment held with business partners.
A person wants to preserve an interest for a particular beneficiary.
A testamentary trust is being considered.
A Queensland title search can help confirm the registered ownership structure. Anyone considering changing from joint tenants to tenants in common should obtain specific legal advice before taking action, particularly where there is a mortgage, relationship-property risk or a blended family.
The Queensland Government provides general information about property ownership laws.
Does the value of the property need to be stated in the Will?
Usually, a Will does not need to state the current market value of a property. Values can change substantially between the date the Will is signed and the date of death.
A well-drafted Will commonly deals with property through specific gifts and a residuary clause. The residuary estate is what remains after debts, expenses and specific gifts have been dealt with.
Instead of stating that a particular beneficiary receives “the property at a stated address”, the Will may need to address what happens if:
The property is sold before death.
The property is refinanced.
The property is replaced by another property.
The property is held through a company or trust.
The property passes outside the estate by survivorship.
The estate has insufficient funds to discharge the mortgage.
A property that is subject to a mortgage is not simply transferred free of debt because the owner has died. The executor must administer the estate, deal with liabilities and determine whether the property is retained, transferred or sold, subject to the relevant legal and lending requirements.
Superannuation and binding nominations are separate
Superannuation is not automatically controlled by a Will. A superannuation death benefit is generally dealt with under the fund’s governing rules and any valid beneficiary nomination.
A binding death benefit nomination may direct the trustee of a superannuation fund to pay the benefit to eligible dependants or the member’s legal personal representative, depending on the fund rules and applicable superannuation law.
A Will should therefore be reviewed alongside:
Superannuation beneficiary nominations.
Life insurance held through superannuation.
Insurance policies held outside superannuation.
Family trust or self-managed superannuation fund documents.
A nomination may expire, become invalid or no longer reflect the person’s intentions. The fund’s requirements should be checked directly. The Australian Retirement Trust information about binding beneficiary nominations provides an example of the type of issue that needs to be considered.
Enduring Powers of Attorney do not replace a Will
An Enduring Power of Attorney is designed to operate during a person’s lifetime if they lose capacity. It may authorise an attorney to make financial, personal or health decisions, depending on the document.
It does not control the distribution of assets after death. That function belongs principally to the Will and other relevant ownership or beneficiary arrangements.
In Queensland, an Enduring Power of Attorney must comply with the requirements of the Powers of Attorney Act 1998 (Qld). Where an attorney needs to deal with Queensland land, registration requirements may apply.
An EPOA should be reviewed when:
A nominated attorney can no longer act.
The relationship with an attorney has changed.
A property has been acquired or refinanced.
The person wants different limits on financial authority.
The person’s health or capacity has changed.
A substitute attorney is needed.
Lightning Legal provides information about Queensland Enduring Powers of Attorney and estate planning.
Guardianship wishes for children should also be reviewed
Parents with minor children should consider what arrangements they want to apply if they die. A Will can record wishes about who should care for children and can appoint or nominate appropriate people in accordance with Queensland law.
This is not the same as appointing an attorney under an Enduring Power of Attorney. An EPOA concerns decisions about the adult who made the document. It does not appoint a guardian for children after that adult’s death.
A parent’s wishes are important, but they are not always conclusive. Any decision about children remains subject to the applicable legislation, family-law principles and the child’s best interests.
A review should consider:
Whether the proposed guardian is still willing and able to act.
The children’s ages and individual needs.
Whether the proposed guardian lives nearby.
How the children would be financially supported.
Whether a testamentary trust is appropriate.
Who should act if the preferred guardian cannot act.
When should a new Will or codicil be considered?
A new Will or codicil may be appropriate after:
Buying a home, investment property or rural property.
Refinancing where debt, ownership or guarantees have changed.
Selling or transferring a significant asset.
Marriage, separation, divorce or entering a new relationship.
The birth or adoption of a child.
The death, incapacity or changed circumstances of a beneficiary or executor.
A significant change to superannuation or insurance nominations.
Establishing or ending a trust or business.
Deciding that a beneficiary needs asset protection.
Moving to or from Queensland.
Changing wishes about children, funeral arrangements or substitute decision-makers.
A codicil can amend limited provisions of an existing Will. It must be prepared and executed with the required legal formalities. Where there are several changes, unclear wording or significant changes in assets and relationships, preparing a new Will may be safer and easier to administer than adding multiple codicils.
When is a testamentary trust worth considering?
A testamentary trust is created under a Will and begins after death. It may provide a framework for managing an inheritance for children or other beneficiaries.
Depending on the circumstances, a testamentary trust may assist with:
Protecting assets for a beneficiary who is young or vulnerable.
Managing an inheritance where a beneficiary has financial difficulties.
Providing flexibility in distributing trust income and capital.
Addressing concerns in a blended family.
Supporting longer-term estate-planning objectives.
Tax treatment depends on the trust structure and the beneficiaries’ circumstances. A testamentary trust is not automatically appropriate for every estate and should be drafted for a specific purpose.
The practical Queensland review checklist
After buying or refinancing property, a person should consider:
Obtain a current title search and confirm whether the property is held as joint tenants or tenants in common.
Record the current mortgage, guarantees and other significant liabilities.
Check whether the property is personally owned or held through a trust or company.
Review the Will’s executor, beneficiary and residuary provisions.
Check superannuation and insurance beneficiary nominations.
Review the Enduring Power of Attorney and proposed attorneys.
Reconsider guardianship wishes for minor children.
Assess whether a testamentary trust is required.
Obtain advice before severing a joint tenancy or changing ownership.
Ensure the signed Will and related documents are stored securely and can be located.
Queensland estate planning with Lightning Legal
A changing property market is a sensible reminder to review an estate plan, but market movement is only one part of the analysis. Ownership, debt, family circumstances and beneficiary arrangements are usually more important.
Lightning Legal prepares Queensland Wills, Enduring Powers of Attorney and testamentary-trust documents using a fixed-price model, direct solicitor access and plain-English communication. The firm can help clients in Brisbane, Ipswich, Logan, Forest Lake and surrounding areas review their estate-planning documents after purchasing or refinancing property.
For more information, visit the Lightning Legal Wills and Estate Planning page, review fixed-price services, or contact Lightning Legal to discuss the next step.
This article provides general information about Queensland law and is not legal advice. Estate-planning outcomes depend on individual circumstances, asset ownership, family relationships and the terms of relevant documents. Specific advice should be obtained before making or changing a Will, Enduring Power of Attorney, property ownership arrangement or beneficiary nomination.
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