Estate Administration in Queensland
You may find yourself in a position where you may have to administer the estate of a deceased person. If the deceased person left a Will, you may have been named as the executor within the Will. Alternatively, a loved one may have passed away without a Will in which case you may be eligible to administer the deceased’s estate.
If you are the named executor under a Will, you may have to apply to the Supreme Court of Queensland for Probate of the Will. Alternatively, if there is no Will, the next of kin may apply to the Supreme Court for Letters of Administration.
The first question to ask is whether or not Probate or Letters of Administration (“Letters”) are required. Where the deceased estate doesn’t have many assets, then an application to the Court may not be required. If the estate has savings with a bank or other financial institution, you would have to contact that institution to ask whether they require Probate to release the funds held. Each institution has its own policies and monetary limits on this matter. If the deceased held shares within a public company, you’ll find that Probate or Letters would be required. Most retirement homes require Probate or Letters before releasing the accommodation bond.
If there is a will and the only major asset of the estate is the deceased’s home, then the executor within the will can apply directly to the Titles Registry to transfer the real property accordingly. You may have to submit the original Will of the deceased with your application and the Will shall not be returned to you. It may be sent to the Court should you later make an application for Probate.
If there is a dispute in relation to a provision made in the Will, it may be a good idea to apply for Probate. An executor may have further rights to seek a declaration from the Court should a provision be contested.
What is Probate / Letters of Administration?
Probate or Letters of Administration is a grant given by the Supreme Court of Queensland to the administrator of an estate. The named executor would apply for probate with the will attached. If the executor is unable or unwilling to act then the beneficiary within the Will with highest priority can apply for Letters of Administration with the Will attached.
If there is no Will, then this means the deceased died ‘intestate’. The laws of intestacy would then apply. If the financial institutions or other parties refuse to release the assets of the estate without Letters, then the next of kin with the highest priority would be eligible to apply to the Court for Letters of Administration. Once granted, the next of kin would then be considered the administrator of the estate and would be responsible for distributing the assets in accordance with the intestacy laws.
The Basic Procedure
The administrator of the estate has the responsibility of collecting up and securing all of the estate assets. In the event that administration takes some time, an obligation may be placed on an administrator to invest any cash held and ensure that there is no waste in relation to the estate assets.
The administrator would also be responsible to pay all of the deceased just debts from the estate assets. The Will may allocate certain assets or accounts to be used for the payment of debts, otherwise, there are rules as to which class of assets should be used first in payment of debts. It may be prudent to seek advice in relation to these matters as the administrator could be held personally liable for any misadministration of the estate.
If Probate or Letters are required, then the administrator would first have to advertise a Notice of Intention to Apply for Grant within a prescribed newspaper or one in general circulation throughout the State. If applying for probate, the Notice would usually contain a statement pursuant to the Trusts Act 1973 known as a notice to creditors. This requires creditors to give notice of their claim within a certain time period. Should a creditor of the estate appear after the executor has distributed the estate, this notice may protect the executor from personal liability in some cases.
A copy of the Notice of Intention to Apply for Grant may also have to be published within the Queensland Law Reporter. You may also have to serve a copy of that Notice to the Public Trustee. After 14 days from the last publication, and not earlier than 7 days after serving the Public Trustee, you may make an application to the Supreme Court for Probate/Letters.
Whether applying for Probate or Letters, the application must be made with a supporting affidavit. There are a number of matters which you would have to swear to in your affidavit, including the capacity of the deceased when making their last Will. The Courts will look at the cause of death on the death certificate and may requisition your application if there are any indicators that the deceased may not have had testamentary capacity at the time of making their Will. In this event it may be prudent to provide medical evidence along with your application.
When making your application, the original certified death certificate will have to be lodged with the Court (its a good idea to have a JP or solicitor make a number of certified copies before you lodge the death certificate with your application). If there is a Will, then the original Will is also lodged (again having certified copies made before lodgement may be a good idea).
If all the documentation is in order, and no party has lodged a caveat or disputed your right to apply for a Grant, then you may be awarded with Probate or Letters, whichever the case may be. This whole procedure could take anywhere from 6 weeks to several months.
Once you are awarded with the appropriate Grant, you can commence distributing the estate. However, it is recommended that no distributions (with some exceptions) be made within the first six months from the date of death. If someone decides to challenge or contest the Will, they would generally have six months from the date of death to give you notice of their intention to commence an action. If you do distribute the estate early and the Court later awards the contesting party a greater share within the Will, you could be held personally liable for any distributions made.
Disclaimer: This is general information only and should not be relied upon as legal advice. Individual circumstances may vary.