When is probate required in Queensland, and can you avoid it?
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Leaving an adult child with an addiction out of your will does not stop them asking the court for provision from your estate. In Queensland, another way is to leave that child's share in a trust. A trustee you choose then pays for their needs, instead of handing over a lump sum.
If your adult child has an addiction to drugs, alcohol or gambling, leaving them out of your will may not protect them or your estate. In Queensland, a child who is left out can still apply to the court for provision from your estate (Succession Act 1981 (Qld) s 41(1)). Another way is to leave your child’s share in a trust. A trustee you choose then pays for your child’s needs, instead of handing over a lump sum.
This guide covers Queensland law only. Other states have their own rules, so if you live outside Queensland, get advice where you live.
Yes, you can make a will that leaves an adult child out. But that will not stop your child applying to the court for family provision after you die. In Queensland, any child of the person who died can apply, including an adult child, a stepchild or an adopted child (s 40, s 41(1)). The court then decides.
Parents who do this usually worry that an equal share would quickly be spent on drugs or alcohol. That worry comes from wanting to protect the child. But relying on the child’s addiction alone is not enough. Other steps are needed, and this guide explains them.
The court asks whether the will made adequate provision for the proper maintenance and support of the child. If it did not, the court may order that provision be made for the child out of the estate (s 41(1)). “Maintenance and support” means the financial support a person needs to live.
The Act does not say how an addiction is treated, and each case turns on its own facts. The court can refuse an order if a person’s character or conduct, in its opinion, disentitles them to it, or if their circumstances make a refusal reasonable (s 41(2)(c)). So do not assume that an addiction, on its own, will defeat a claim. If the court does make an order, it can attach conditions, and it can order a lump sum or periodic payments (s 41(2)(a) and (b)).
A claim generally has to be started in court within 9 months after the death. The court can allow a late claim, but it does not have to (s 41(8)). See time limits to contest a will in Queensland and who can contest a will in Queensland.
You can leave your child out, give them a share outright, or leave their share in a trust. A trust can be discretionary, where a trustee decides what to pay, or protective, where your child receives income until a set event happens. Some parents also set up a trust during their life. The table below compares these options.
| Option | How your child receives it | Who controls the money | Can your child still claim? | Things to check |
|---|---|---|---|---|
| Leave your child out | Nothing under the will | No one, unless the court makes an order | Yes (Succession Act s 41(1)) | A claim takes time and money, and the court decides the result |
| Leave a share outright | A lump sum when the estate is paid out | Your child | Yes, but the court looks at what the will gave them | Your child can spend it however they choose |
| Discretionary trust in your will | Payments the trustee decides on, including bills paid directly | The trustee you choose | Yes, but the court looks at the provision the trust makes | Who the trustee is, and the tax and Centrelink effects |
| Protective trust in your will | Income for life or a set period, until an event named in your will happens. Then the trustee decides (Trusts Act 2025 (Qld) s 182) | Your child at first, then the trustee after an event | Yes, but the court looks at the provision the trust makes | The terms must be written into your will |
| Trust set up during your life | Under the trust deed, not your will | The trustee of that trust | An order is made out of your estate (s 41(1)). Ask how this applies to property you move | Tax, transfer duty and Centrelink effects. Get advice before you move any assets |
You can also combine options. For example, a will might give part of a child’s share outright and hold the rest in a trust.
A testamentary trust is a trust set up by your will. It starts after you die. A trustee holds your child’s share instead of paying it to your child in one amount. The trustee uses it for your child under the rules in your will, for example by paying rent, bills or treatment costs directly.
A trustee is a person or company that holds and manages property for someone else, called the beneficiary. Your executor, the person your will names to carry it out, often becomes the trustee as well.
In a discretionary trust, the trustee decides whether to pay, when to pay and how much. Your child cannot demand the money, so the trustee can respond to how your child is going at the time. Your will can let the trustee:
The Trusts Act 2025 (Qld) applies to trusts set up by a will, and it treats an executor as a trustee (s 7(1)(c)). A trustee must:
The Act also gives trustees default powers, with limits, to pay for a beneficiary’s maintenance, education or advancement (ss 124 to 134). Your will can give wider powers (s 3(3)). A trustee can attach conditions to these payments, such as repayment (s 132). So a trustee could lend your child money for a car rather than give it.
This is a made-up example. It is not a real client.
Helen is 68. Her son has had an alcohol addiction for many years. Her will leaves half her estate to her daughter outright and puts her son’s half in a discretionary testamentary trust. Her daughter and a family friend are the trustees, so her daughter does not carry the role alone. They can pay his rent and bills directly, pay for treatment if he wants it, pay him a modest weekly amount, and pay out more if his circumstances improve. What is left when he dies goes to his children. Helen also signs a statement of her reasons and writes a letter of wishes.
If her son applies for family provision, the court would look at the provision the trust makes for him. No one can say in advance what the court would decide. But it would be looking at a will that plans for her son, not one that leaves him out.
A protective trust pays your child the income from their share, for their life or a shorter period. If an event set out in your will happens, that right ends. The trustee then uses the income for your child and their family as the trustee considers appropriate. The Trusts Act 2025 (Qld) describes this kind of trust in s 182.
The events are chosen when the will is written. Examples include your child trying to sell, mortgage or give away their right to the income, or becoming bankrupt. After such an event, the income can be used for the maintenance, education or advancement of your child and your child’s spouse or descendants. If there are none, it can be used for your child and the people who would be entitled to the property if your child had died (s 182(1)(b)).
So a protective trust gives your child a steady income, as of right, until an event happens. A discretionary trust gives the trustee more control from the start.
If your will already says “on protective trusts”. The Trusts Act 2025 started on 28 April 2026. It keeps the old statutory meaning of “protective trusts” only where income was already directed to be held on protective trusts when it started (s 269). If your will relies on those words, ask your lawyer whether it still works as you intended.
Choose people who can say no to your child, will keep good records and are likely to be around for the long term. Your executor deals with your estate after you die. Your trustee may manage your child’s trust for many years. One person can do both jobs, and you can appoint more than one person.
Who can be a trustee. A trustee cannot be a child (a person under 18). Nor can an individual who is an insolvent under administration, such as an undischarged bankrupt (Trusts Act 2025 s 13(1)). A trust like this can have no more than 4 trustees, unless the court approves more (ss 14 and 15).
Things to weigh up:
A letter of wishes. It is not usually binding, but it tells your trustee what you hope for, such as how to respond if your child relapses or recovers.
Your child can question the trustee. A beneficiary who is unhappy with a trustee’s decision can ask the court to review it. Grounds include bad faith, not giving the matter real or genuine consideration, and acting against the purposes of the trust (ss 187 and 188). A trustee who is unsure what to do can ask the court for directions (s 184).
Timing for your executor. An executor who properly distributes the estate at least 6 months after the death, without written notice of a claim, is protected (Succession Act s 44(3)(a) and (4)). See what to do when you are named executor of a will.
It can help. A signed statement of your reasons, kept with your will, gives your executor your own account of why you planned your will this way. It will not stop a claim. It should be accurate, fair and up to date. Your lawyer can advise you on the right form and wording.
Some tips:
No. Nothing can stop an eligible child from applying. But a trust means your will does make provision for your child. The court then asks whether that provision is adequate for your child’s proper maintenance and support (s 41(1)). A carefully planned trust may reduce the risk of a claim. No one can promise it will prevent one.
If you are thinking about leaving your child out altogether, or giving property away during your life so there is less in your estate, get advice first. These choices have legal, tax and family effects.
Your will only works after you die. An enduring power of attorney covers the time when you are alive but cannot make your own decisions. It lets you choose who manages your money and personal matters (Powers of Attorney Act 1998 (Qld) s 32). Think carefully before giving financial power to a child with an addiction.
An enduring power of attorney keeps working if you lose capacity (s 32(2)) and ends when you die (s 51). For financial matters, an attorney must be an adult with capacity who is not bankrupt and is not your paid carer or health provider, among other rules. The Public Trustee or a trustee company can also be appointed (s 29). You can appoint more than one attorney (s 43). An attorney must act honestly and with reasonable diligence to protect your interests (s 66).
Supporting your child while you are alive. If your child is completely or mainly dependent on you, your financial attorney may provide for their needs from your money. Unless your enduring power of attorney says otherwise, the amount must be reasonable, having regard to your financial circumstances (s 89 and schedule 3).
The Queensland Government recommends getting independent legal advice before you make an enduring power of attorney. See enduring power of attorney vs power of attorney in Queensland.
Not just because you are their parent. The law presumes that an adult has capacity to make their own decisions (Powers of Attorney Act 1998 s 6C, general principle 1). While your child has capacity, they can make their own enduring power of attorney (ss 32 and 41). The Queensland Civil and Administrative Tribunal (QCAT) can appoint a guardian or administrator only if an adult has impaired capacity for a matter and the other tests in the Act are met (Guardianship and Administration Act 2000 (Qld) s 12).
A trust can change how income is taxed, and it may affect Centrelink payments or NDIS supports for your child. These are Commonwealth rules and they change over time. Get advice from an accountant or financial adviser before you sign your will.
Superannuation and life insurance may not pass under your will in the ordinary way. Ask your super fund, and your lawyer, whether they will be paid to your estate or straight to a person. Money paid straight to your child would not go through the trust in your will.
Start by making an appointment to make or update your will, and tell your lawyer about your child’s situation. Then decide how your child’s share will be held, who will manage it, and who will be your attorney. The checklist below sets out the steps in order.
You can ask your lawyer, but conditions like this are hard to write well. It can be difficult to define what counts as staying off drugs or alcohol, to check it and to enforce it. An unclear condition may not work as you intended. A discretionary trust avoids the need for a test, because the trustee can respond to your child’s situation at any time.
That depends on your will. It can let the trustee pay out more, or all of the trust, if your child’s circumstances improve. It can also set a date or an age when the trust ends.
It depends on how the trust is set up and on your child’s situation at the time. In a discretionary trust, your child does not own the trust property. In a protective trust, the right to income can end on events such as bankruptcy. But no trust gives complete protection in every case.
Your will says who receives it, for example your child’s own children or your other children. Make sure your will covers this.
Catton Roderick Lawyers helps Queensland parents plan wills for a family member with an addiction. This can include testamentary and protective trusts, and enduring powers of attorney. Dr Darren Catton, principal, has been a lawyer since 1987 and is a full member of the Society of Trust and Estate Practitioners (TEP). The firm has operated since 2006.
To talk to us, call 1300 673 792 or email info@cattonroderick.com.au. You can also send an enquiry through our contact page.
Our offices are in Caboolture (Unit 3, 9 East Street) and Redcliffe (First Floor, Cominos Arcade, 133 Redcliffe Parade). We also see clients by appointment in Birtinya on the Sunshine Coast and in Brisbane.
If a parent has died and you were left out of their will, or given less than you expected, see estate claims and family provision applications.
This page is general information about Queensland law as at September 2026. It is not legal advice about your situation. Time limits apply, so please get advice about your own circumstances.
Last reviewed: 27 September 2026
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