Probate

Estate administration is the process of a deceased person’s estate being collected and distributed in accordance with the deceased’s wishes, or the law. The estate administration process sometimes requires a grant of probate or a grant of letter of administration which are legal documents used to verify the authority of the person administering the estate.

If you need to obtain a grant of probate or a grant of letter of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

What is Probate?

Probate

If you are appointed as an executor by a person who has died leaving a will, you may be required to obtain a grant of probate from the Supreme Court of Queensland to administer the person’s estate. A grant of probate verifies the authority of the executor to deal with the estate of the deceased.

Letters of Administration

Instead of a grant of probate, where a person has died without a will, or with a will that does not have a valid executor appointment, the person wanting to deal with the estate of the deceased is required to obtain a grant of letters of administration from the Supreme Court of Queensland. A person who obtains a grant of letters of administration is referred to as an “administrator”.

Who is Entitled to Apply for a Grant of Probate?

There are laws which dictate who is entitled to administer a deceased person’s estate, and regulating their conduct.

The correct term for a person who is appointed to administer a deceased person’s estate is “executor” or “administrator”, depending upon the circumstances of their appointment. The term “personal representative” can mean either an executor or an administrator.

If you are appointed as an executor by a person who has died leaving a will, you are the person with first priority to apply for a grant of probate. Where you are appointed as an executor you may be required to obtain a grant of probate from the Supreme Court of Queensland to administer the person’s estate. A grant of probate verifies the authority of the executor to deal with the estate of the deceased.

If you need to obtain a grant of probate or a grant of letter of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

When is a Grant of Probate Required?

The requirement to obtain a grant of probate or a grant of letters of administration is determined by the nature of the assets of the deceased’s estate. For example if the deceased has a minimal estate probate may not be required. The requirement for probate is also determined by which entities hold the assets of the deceased and what they require to release the asset to the executor. For example most banks require a grant of probate if the asset they hold exceeds a certain value.

If you need to obtain a grant of probate or a grant of letter of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

What are the Rights and Duties of an Administrator?

The executor or administrator of an estate is responsible for collecting the deceased’s assets, paying any liabilities that the deceased may have had and administering the estate in accordance with the deceased’s will or the rules of intestacy where the deceased did not leave a will.

The duties of executors can be summarised as follows:

• To take custody and see to the disposal of the deceased’s body;
• To collect the assets of the estate;
• To realise the assets of the estate;
• To pay the testamentary expenses and liabilities of the estate;
• To administer the estate in accordance with the will;
• To keep proper accounts; and
• To carry on or defend against causes of action in respect of the estate (please note that the survival of contractual rights allows executors to enforce or be sued on contracts entered into by the deceased during their lifetime).

Executors have a fiduciary duty to the beneficiaries of the estate and must discharge their duties in the best interests of the beneficiaries.

An executor’s role is largely gratuitous, meaning that they are expected to carry out their duties without seeking remuneration from the estate. In many cases an executor is also a beneficiary of the estate and therefore they will already receive a benefit. However, Section 68 of the Succession ACT 1981 provides that an executor may apply to the Supreme Court of Queensland for commission out of the estate for payment of remuneration or commission to the personal representative for his or her services.

The application for commission will be determined by a Registrar of the Supreme Court of Queensland who will have regard to:

• the amount of capital realised,
• the amount of income collected,
• the value of any assets transferred to beneficiaries, and
• where a business was carried on — the gross receipts and net profit earned or loss incurred, during the period of the accounts.

The amount of commission will be determined as a percentage of the above amounts. In circumstances where the executor or beneficiaries do not agree with the Registrar’s determination, it may be appealed with the appeal heard by a Judge of the Supreme Court of Queensland.

To apply for commission, an executor must pass the estate accounts by filing them with the application. The beneficiaries of the estate must be notified of the application so that they have an opportunity to make submissions and objections to the application.

Who can Apply for a Grant of Administration?

There are laws which dictate who is entitled to administer a deceased person’s estate, and regulating their conduct.

The correct term for a person who is appointed to administer a deceased person’s estate is “executor” or “administrator”, depending upon the circumstances of their appointment. The term “personal representative” can mean either an executor or an administrator.

Instead of a grant of probate, where a person has died without a will, or with a will that does not have a valid executor appointment, the person wanting to deal with the estate of the deceased is required to obtain a grant of letters of administration from the Supreme Court of Queensland. A person who obtains a grant of letters of administration is referred to as an “administrator”. A grant of letters of administration verifies the authority of the executor to deal with the estate of the deceased.

A person named as an executor in a will is the person with priority to apply for a grant of probate. Where the person named as the executor is unwilling or unable to make an application for a grant of probate, an alternative person may make an application for a grant of letters of administration.

Where there is no will left by the deceased there are certain categories of people who are entitled to make an application to administer the estate. In circumstances where there is no will left by the deceased a person who administers the estate may be required to apply for a grant of letters of administration.

If you need to obtain a grant of probate or a grant of letter of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

How to Apply for Probate

The requirements for applying for a grant of Probate are set out in the Uniform Civil Procedure Rules 1999.

The steps in applying for a grant of Probate are generally as follows:

1. Advertise

You will need to advertise a Notice of Intention to Apply for Grant in the approved form in two publications:

• In the Courier Mail where the deceased’s last residential address was in Queensland, or in a newspaper circulating throughout the State if the deceased’s last residential address was outside Queensland;
• In the Queensland Law Reporter.

2. Notify the Public Trustee

You will need to send a copy of your Notice of Intention to Apply for Grant to the Public Trustee by mail or fax.

3. Allow time to object

Wait for 14 days after your Notice appears in the Courier Mail and the Queensland Law Reporter to enable people to object to your application. You can file your application on the 15th day.

4. Prepare the documents

As a minimum requirement, you must provide the Court with the following documentation in the approved form:

• Application for Probate – This is a standard court document setting out the details of the deceased, your details and your grounds for applying for probate;
• Original Will together with two clear photocopies – It is important that staples are not removed from the original Will and that nothing else is stapled, attached or fastened to the original Will as this may show evidence of tampering;
• Affidavit in Support – This is a standard court document that details the evidence in support of your application;
• Original Death Certificate of the deceased;
• Affidavit of Publication – This is a standard court document showing that you have correctly advertised your intention to apply;
• A copy of your Notice of Intention to Apply for Grant – Both advertisements must be attached.

5. File the documents at the Supreme Court

You may file your application with the Court by post or in person. The Supreme Court has registries in Brisbane, Rockhampton, Townsville and Cairns. You must pay the filing fee when filing. If you wish to have the Grant returned to you by post you must include a stamped, self-addressed A4 envelope.

It is important to ensure that the spelling of persons’ names is correct in all application forms. In the event that there is an error in the application or not enough information provided for a Grant to be made, the Court will issue you with a requisition which sets out what further information or documents are required for the Grant to be made.

If you are unsure about how to make your probate application please contact Armstrong Legal on 1300 038 223 as we can assist you.

When is a Grant of Letters of Administration Required?

The requirement to obtain a grant of probate or a grant of letters of administration is determined by the nature of the assets of the deceased’s estate. For example if the deceased has a minimal estate probate may not be required. The requirement for probate is also determined by which entities hold the assets of the deceased and what they require to release the asset to the executor. For example most banks require a grant of probate if the asset they hold exceeds a certain value.

If you need to obtain a grant of probate or a grant of letter of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

Steps In Applying for a Grant of Probate

Locate the Will

The first step in applying for a grant of probate is to locate the original will. If you do not know where the original will is located it is advisable to check the paperwork of the deceased for the will or any information that may assist in locating the will. It is also advisable to contact the usual solicitor or any solicitor the deceased was known to have dealings with to enquire if they hold a will for the deceased. The executor should also contact the Public Trustee of Queensland to enquire if they hold a will for the deceased.

If there is more than one will located consideration will need to be given to which is the last valid will of the deceased. Usually the latest will is the last valid will of the deceased. However, this is not always the case and you may need to seek legal advice if you require assistance determining the which is the last valid will.

Obtain Death Certificate

Family members may already have a copy of the death certificate, however if a copy of the death certificate is not available the executor is required to order a certificate from the Registry of Births, Deaths and Marriages. There is a fee payable to the registry to obtain a death certificate. This process can be delayed where there is an investigation required regarding the cause of death.

Advertising

Once an executor has identified the valid last will of the deceased they are required to wait for 30 days after the date of the deceased’s passing before applying for a grant of probate.

The steps you are required to follow in order to apply for a grant of probate or a grant of letters of administration require you to comply with a certain timeframes. When applying for a grant of probate you are required to prepare a notice which is provided to the Public Trustee of Queensland. The notice is also required to be placed in an advertisement in certain authorised publications. It is also a requirement that once your notice has been published you wait 14 days before making an application for a grant of probate.

Application

After the relevant timeframes have been met the executor is required to prepare a court application. The application itself has to be in a particular form and has to meet certain requirements. It is advisable to seek legal advice to assist with the preparation of an application for a grant of probate. Once the application has been prepared it needs to be filed in the Supreme Court registry. There is a court filing fee payable at the time of filing the application.

If you need to obtain a grant of probate or a grant of letter of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

Steps in Applying for a Grant of Letters of Administration

The first step in applying for a grant of letters of administration is to determine whether or not the deceased person left a will. If there is a will, the executor is required to take steps to take up their appointment as executor. Alternatively an executor may renounce or step down from acting. If an executor is unwilling or unable to act as executor then a grant of letters of administration will be required to administer the estate instead of a grant of probate.

If the deceased did not leave a will then a person with priority to apply for a grant of letters of administration may be required to do so in order to administer the estate.

Locate the Will

If you do not know where or not the deceased left a will, an administrator is required to take steps to determine whether or not the deceased did in fact a will and if so where the original will is located. It is advisable to check the paperwork of the deceased for the will or any information that may assist in locating the will. It is also advisable to contact the usual solicitor or any solicitor the deceased was known to have dealings with to enquire if they hold a will for the deceased. The administrator should also contact the Public Trustee of Queensland to enquire if they hold a will for the deceased.

If there is more than one will located consideration will need to be given to which is the last valid will of the deceased. Usually the latest will is the last valid will of the deceased. However, this is not always the case and you may need to seek legal advice if you require assistance determining the which is the last valid will.

Obtain Death Certificate

Family members may already have a copy of the death certificate, however if a copy of the death certificate is not available the administrator is required to order a certificate from the Registry of Births, Deaths and Marriages. There is a fee payable to the registry to obtain a death certificate. This process can be delayed where there is an investigation required regarding the cause of death.

Advertising

Once an administrator has identified the last will of the deceased they are required to wait for 30 days after the date of the deceased’s passing before applying for a grant of letters of administration.

The steps you are required to follow in order to apply for a grant of or a grant of letters of administration require you to comply with a certain timeframes. When applying for a grant of letters of administration you are required to prepare a notice which is provided to the Public Trustee of Queensland. The notice is also required to be placed in an advertisement in certain authorised publications. It is also a requirement that once your notice has been published you wait 14 days before making an application for a grant of letters of administration.

Application

After the relevant timeframes have been met the administrator is required to prepare a court application. The application itself has to be in a particular form and has to meet certain requirements. It is advisable to seek legal advice to assist with the preparation of an application for a grant of letters of administration. Once the application has been prepared it needs to be filed in the Supreme Court registry. There is a court filing fee payable at the time of filing the application.

If you need to obtain a grant of probate or a grant of letter of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

Timeframe to Apply for a Grant of Administration

It can take a number of months from the time of the deceased’s passing before you have the grant of probate or the grant of letters of administration. See our page STEPS IN APPLYING FOR A GRANT OF PROBATE AND STEPS IN APPLYING FOR A GRANT OF LETTERS OF ADMINISTRATION Steps in applying for a grant of probate and Steps in applying for a grant of letters of administration.

An executor or administrator is required to wait for 30 days after the date of the deceased’s passing before applying for a grant of probate or a grant of letters of administration.

The steps you are required to follow in order to apply for a grant of probate or a grant of letters of administration require you to comply with a certain timeframes. For example, when applying for a grant of probate or a grant of letters of administration you are required to place an advertisement in certain publications. It is also a requirement that once your advertisement has been published you wait 14 days before making an application for a grant of probate or a grant of letters of administration.

After complying with all of the steps required you can then file the application for a grant of probate or grant of letters of administration in the court registry. After the application has been filed in the court registry the capacity of the registry to process the application determines the time it takes to obtain the grant of probate or the grant of letters of administration. It can take anywhere from 6-10 weeks to have the grant of probate or the grant of letters of administration issued by the court registry. It may take longer if the courts are particularly busy. It is also important to check that you will not be prevented from filing you application for a grant of probate or a grant of letters of administration by closure of the registry during court holidays.

Although it may take some time to obtain a grant of probate or a grant of letters of administration it is important to know that the funeral expense can be paid from the estate funds before a grant has been obtained.

If you need to obtain a grant of probate or a grant of letter of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

How Long does it take to Obtain Probate?

It can take a number of months from the time of the deceased’s passing before you have the grant of probate or the grant of letters of administration. See our page STEPS IN APPLYING FOR A GRANT OF PROBATE AND STEPS IN APPLYING FOR A GRANT OF LETTER OF ADMINISTRATION Steps in applying for a grant of probate and Steps in applying for a grant of letters of administration.

An executor or administrator is required to wait for 30 days after the date of the deceased’s passing before applying for a grant of probate or a grant of letters of administration.

The steps you are required to follow in order to apply for a grant of probate or a grant of letters of administration require you to comply with a certain timeframes. For example, when applying for a grant of probate or a grant of letters of administration you are required to place an advertisement in certain publications. It is also a requirement that once your advertisement has been published you wait 14 days before making an application for a grant of probate or a grant of letters of administration.

After complying with all of the steps required you can then file the application for a grant of probate or grant of letters of administration in the court registry. After the application has been filed in the court registry the capacity of the registry to process the application determines the time it takes to obtain the grant of probate or the grant of letters of administration. It can take anywhere from 6-10 weeks to have the grant of probate or the grant of letters of administration issued by the court registry. It may take longer if the courts are particularly busy. It is also important to check that you will not be prevented from filing your application for a grant of probate or a grant of letters of administration by closure of the registry during court holidays.

Although it may take some time to obtain a grant of probate or a grant of letters of administration it is important to know that the funeral expense can be paid from the estate funds before a grant has been obtained.

If you need to obtain a grant of probate or a grant of letter of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

Costs Associated with Obtaining Probate

The costs associated with obtaining a grant of probate include the following:

• Fee required to be paid to the Registry of Births, Deaths and Marriages in order to obtain the death certificate;
• Advertising fee required to be paid to advertise the notice of intention to apply for a grant of probate;
• Court filing fee paid to the court registry at the time of filing the application for the grant of probate; and
• Any legal advice obtaining to assist with the application for a grant of probate.

If you need to obtain a grant of probate in Queensland, we invite you to contact us for an obligation free case assessment on 11300 038 223.

Costs Associated with Obtaining Letters of Administration

The costs associated with obtaining a grant of letters of administration include the following:

• Fee required to be paid to the Registry of Births, Deaths and Marriages in order to obtain the death certificate;
• Advertising fee required to be paid to advertise the notice of intention to apply for a grant of letters of administration;
• Court filing fee paid to the court registry at the time of filing the application for the grant of letters of administration; and
• Any legal advice obtaining to assist with the application for a grant of letters of administration.

If you need to obtain a grant of letters of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

Revocation of a Grant

Where a grant is made in error or improperly obtained, certain eligible people may seek to have the grant revoked.

A grant may also be revoked in the event it becomes ineffectual, for example in the following circumstances:

• the executor lacks capacity to continue to perform their duties in administering the estate;
• there has been misconduct or gross delay by the executor;
• there is ineffective cooperation between joint executors.

In the event any of the above circumstances arise, the categories of people eligible to seek revocation of the grant are as follow:

• a person entitled on intestacy;
• beneficiaries named in the will that was admitted to probate;
• beneficiaries named in a previous will; and
• the executor named in the will.

If you need advice about revoking a grant of probate or a grant of letter of administration in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.

The Role of the Executor

If a person is appointed as executor or administrator of the estate and accepts that appointment, they have a duty to administer the estate in accordance with the will (or intestacy rules if applicable) and distribute the estate to the beneficiaries. The following is a list of tasks which the executor usually must perform in administering an estate:

Funeral arrangements

• One of the first duties of the executor may be to make funeral arrangements for the deceased person. Any funeral costs incurred by the executor or other family member are reimbursed from the estate of the deceased person.

Death certificate

• The executor will require a copy of the death certificate in many of their dealings with other organisations such as banks. The executor will also require a copy of the death certificate to apply to the court for a grant of probate. If there is not a copy of the death certificate supplied by the funeral home or family, the executor will be required to apply to the Registry of Births Deaths and Marriages to obtain a copy of the death certificate.

Notification of death

• The executor has to contact all relevant organisations with which the deceased had dealings and notify them of the death, this usually requires providing a certified copy of the death certificate. Different organisations have different requirements to release information or assets to the executor. The executor also has to ascertain what each organisation requires to release the information or asset to the executor to be dealt with as part of the estate. For example many financial institutions will require a copy of the grant of probate or letters of administration to release accounts or investments over $50,000.00 in value.
• The following are some examples of organisations who must be notified when a person dies:
  • Banks;
  • Insurance companies
  • Employer
  • Government departments such as Centrelink, Medicare, Department of Transport and Department of Veterans Affairs
  • In home care providers and other domestic service providers
  • Foreign embassy if the deceased received of a foreign pension
  • Libraries or other clubs or associations with which the deceased was a member

Identify assets and liabilities

• The executor will need to determine the nature of ownership of the assets of the deceased person, for example whether the assets were owned jointly or solely. The executor also needs to identify and pay the liabilities of the estate.

Secure assets

• An executor is required to secure all assets of the estate against loss or damage. For example ensuring real estate is appropriately secured and the executor is in possession of all keys. The executor also needs to insure assets or maintain the existing insurance on assets. The executor has an obligation to protect the estate from loss which may involve selling high risk assets such as motor vehicles as soon as possible.
• Some points to consider are as follows:
  • Consider selling real property;
  • Make a claim for the deceased’s superannuation (if any) to be paid to the executor on behalf of the deceased’s estate;
  • Set up an estate bank account to receive proceeds of the deceased’s bank accounts and the proceeds of sale of estate assets;
  • Pay any debts or liabilities from estate funds (note: the executor should keep tax invoices, receipts and other proof of payment of these debts or liabilities);
  • See an accountant for advice about lodging final income tax returns and the taxation implications of selling any estate assets.

Investments

• Where appropriate, it is the executor’s duty to invest the assets of the estate suitable investments. The executor must act with reasonable care and diligence when making or managing investments. The executor’s overarching duty is to preserve the assets of the estate and accordingly a cautious approach should be taken to investments. Further information about the approach that should be taken with investments can be found here.

Distribution

• It is the duty of the executor to distribute the estate in accordance with the will, or rules of intestacy where there is no will. No distributions should be made from the estate until six months from date of death in case there are claims against the estate. If a claim is made against the estate, for example when the will or challenged or contested, then the executor cannot distribute the estate until the claim is resolved.

If you need assistance with the administration of an estate in Queensland, we invite you to contact us for an obligation free case assessment on 1300 038 223.