8 Common Estate Planning Mistakes and How to Avoid Them

Estate planning is often misunderstood as something only wealthy and elderly people need. But that couldn’t be further from the truth. Whether you own a family home, a business, or simply have superannuation or children to care for, having a sound estate plan is essential. In Queensland, failing to get it right can result in expensive disputes, delays, and unintended outcomes.

This article unpacks the most common estate planning mistakes and provides practical, legally sound ways to avoid them.

1. Not Having a Valid or Current Will

A well-prepared Will is the starting point of any estate plan. Without one, you die intestate, and the law—not your preferences—decides how your assets are divided. In Queensland, the Succession Act 1981 governs how estates are distributed when there’s no valid Will.

Here are some common consequences of dying intestate:

If you do make a Will but it is deemed invalid, your estate will be distributed according to Queensland’s intestacy laws. This can cause delays, legal costs, and potential disputes among family members. Properly executed Wills prevent these issues, ensuring your estate is handled as you intend.

Under Section 10 of the Succession Act, for a Will to be valid, it must be:

• In writing

• Signed by the testator (i.e., person making the Will)
• Witnessed by two individuals who are not beneficiaries, and who are present together at the time of signing.

Remember, life is uncertain, so don’t hold off—any Australian over 18 with mental capacity can create a Will.

But What If I Already Have a Valid Will?

Even if you have a Will, it may become outdated. Life changes or significant asset changes can all affect how your Will operates. If it no longer reflects your current intentions, the consequences can be just as problematic as having no Will at all.

Tip: Use major life events—like marriage, divorce, the birth of a child, or buying property—as reminders to review your Will.

How to avoid these mistakes:

• Make a Will with a seasoned Estate Planning Lawyer
• Revisit and revise your Will every few years (e.g., 3-5 years), especially after significant changes in your life.
• Keep the original Will in a safe, known location

2. Failing to Appoint the Right Executor or Trustee

The executor is the person (or entity) you choose to carry out your will after you die. They gather your assets, pay your debts, and distribute what’s left to your beneficiaries. When your Will includes a trust—such as for minors or people with disabilities—a trustee will be named to manage the trust assets.

Common issues with executors include:

• Appointing someone who lacks financial skills
• Choosing someone who may be emotionally overwhelmed by your passing
• Picking someone who lives overseas (which may complicate administration)

What to look for in an executor:

• Trustworthy and organised
• Reasonably financially literate
• Able to act impartially if there is conflict among beneficiaries
• Willing and capable of fulfilling the role

You can also appoint a professional trustee, such as the Public Trustee or a law firm, especially for complex estates. At ROC Legal, our Estate Planning Lawyers in Brisbane and on the Gold Coast can help you appoint the right executor and avoid unethical ones. Call us now for expert guidance.

3. Overlooking Tax Implications

Tax is a key component of estate planning. Without proper planning, you could leave your loved ones with unexpected tax liabilities.

Tax issues to consider in Queensland:

• Capital Gains Tax (CGT): May apply if the estate or beneficiaries sell inherited property.
• Superannuation death benefits tax: Can be significant if paid to non-dependents.
• Stamp duty: May apply when assets such as property are transferred.

Here’s an overview of how to minimise tax burdens:

Strategy	Benefit
Testamentary trust	Income from a testamentary trust can be distributed to minors at adult tax rates, potentially reducing taxes owed.
Superannuation nominations	Binding death benefit nominations (BDBNs) can direct funds to dependants, which can be tax-free.
Pre-death gifting	Reduces the size of the estate, but must be carefully managed to avoid unintended consequences

Please don’t hesitate to consult one of our experienced Estate Planning Lawyers Brisbane or Estate Planning Lawyers Gold Coast, or your tax advisors to tailor these strategies to your situation.

4. Not Planning for Incapacity

Estate planning isn’t just about what happens when you die—it’s also about what happens if you lose the ability to make decisions while you’re alive.

In Queensland, the following documents are critical:

• Enduring Power of Attorney (EPOA): Lets you appoint someone to manage your financial and personal/health matters if you lose capacity.
• Advance Health Directive (AHD): Lets you specify your medical wishes in advance, such as refusing life-sustaining treatment.

Without these documents, family members may need to apply to the Queensland Civil and Administrative Tribunal (QCAT) for guardianship orders, which can be stressful and time-consuming.

Tip: Choose reliable attorneys, understand your values, and are willing to act in your best interests. We’re here to help ensure your wishes are honoured and respected

5. Leaving Assets Directly to Minors

Children under 18 can’t legally manage assets themselves. If you leave them an inheritance directly in your Will, it may be managed by a statutory trustee until they come of age. This can limit flexibility and may not align with your intentions.

A testamentary trust offers several key advantage:

• Asset control: You can specify when and how assets are accessed.
• Education and care funding: The trust can fund education or healthcare before full control is handed over.
• Tax savings: Income from the trust can be distributed tax-effectively.

Take note, a testamentary trust is created within your Will and only comes into effect after your death. You can customise it to reflect your intentions and offer long-term security.

6. Unequal or Unclear Distributions

Leaving unequal shares to children or other beneficiaries is not inherently wrong—but failing to explain why can trigger legal challenges.

In Queensland, eligible people (including spouses, children, and dependants) can bring a family provision claim if they believe they were not properly provided for.

Common triggers for disputes:

• One child receives more than others
• A de facto partner is excluded
• Stepchildren are not mentioned
• Vague or conflicting wording in the will

Strategies to reduce conflict:

• Have a conversation: Where appropriate, speak to your family about your decisions.
• Document your intentions: Include a statement of reasons or letter of wishes alongside your Will.
• Get professional legal advice: A well-drafted Will can withstand court scrutiny and reduce the risk of disputes. Book a consultation with us today.

7. Relying on Online or DIY Wills

Online and DIY Wills may seem like a cost-saving option, but they often lead to problems that end up costing your estate far more in legal fees and court delays.

Risks of DIY wills:

• Unclear or contradictory clauses
• Missing legal requirements (e.g., improper witnessing)
• No contingency planning
• Increased likelihood of challenges

If a Will is deemed invalid or unclear, your estate could be treated as partially intestate, resulting in an unintended distribution of assets.

Situations Where a DIY Will Can Go Wrong

• Blended families: Without proper planning, children from previous relationships and current partners may clash over your estate.
• Complex assets: Multiple properties, large super, or investments require careful planning to avoid tax issues and delays.
• Business ownership: A DIY Will often overlooks what happens to your business—putting its future at risk.
• Special needs beneficiaries: Leaving assets directly may affect disability support. A trust helps secure both their support and entitlements.
• Family tension: Unequal gifts or excluding someone can trigger disputes. Get expert legal advice from our experienced Estate Planning Lawyers on the Gold Coast and Brisbane today to reduce the risk of challenges.

8. Not Including Digital Assets in Your Will

In today’s world, many of us hold valuable digital assets—whether it’s cryptocurrency, online business accounts, photos in the cloud, or even loyalty points. But these are often overlooked in estate planning.

Leaving out digital assets may prevent your family from legally accessing vital online accounts. Passwords, privacy settings, and platform rules can all make recovery difficult—or impossible.

Adding digital assets to your Will helps guarantee:

• Access isn’t lost due to forgotten logins or legal hurdles.
• Important data—like photos or documents—isn’t accidentally deleted.
• Online businesses or crypto don’t vanish without instruction.

Appointing someone you trust to manage your digital estate—and leaving clear, secure instructions—can save your family time, stress, and loss down the track.

Quick Answers to Common Questions About Estate Planning

Can I change my will after it’s signed?

Yes, but changes must follow legal procedures. You can update your Will with a codicil or create a new one. The Queensland government provides a sample codicil, accessible here.

Is a lawyer necessary to draft a Will?

Having an Estate Planning Lawyer is not legally required, but it is highly recommended to ensure the Will is valid, and avoid future disputes and delays.

Does superannuation form part of my estate?

Not automatically. A binding death benefit nomination is essential to decide who inherits your superannuation.

Is probate always required?

Not always. The need for legal help varies based on how large or complex your estate is and what assets are involved.

Your Action Plan: What to Do Next

To protect your family and your legacy, estate planning should be treated as a priority—not a “someday” task. Here’s a practical list to get started or update your estate plan:

• Draft a valid Will that reflects your current wishes
• Choose a reliable executor, or a professional trustee for more complicated situations
• Establish enduring powers of attorney and advance health directives
• Consider using testamentary trusts for children or vulnerable beneficiaries
• Get advice on how to minimise tax and maximise asset protection
• Discuss your wishes with key family members to avoid misunderstandings
• Revisit your estate plan every 3 to 5 years or following key life changes

Safeguard Your Legacy with ROC Legal

A good estate plan does more than just distribute assets. It protects your loved ones, reduces stress during already difficult times, and ensures your wishes are legally respected.

If you’re unsure where to begin or if you need to update your Will, talk to our expert Brisbane and Gold Coast Estate Planning Lawyers today.

Waiting for the perfect moment isn’t necessary. Estate planning brings reassurance to both you and your loved ones.