Deceased Estate Administration in Queensland
When a person dies in Queensland, someone must accept legal responsibility for the deceased estate administration. It is often not a simple task, and the duties can be numerous. The process of deceased estate administration is governed by legislation including the Succession Act 1981, as well as the common law. This article explores the process of deceased estate administration in Queensland and particularly the role of the personal representative of the deceased.
Deceased Estate Administration in Queensland
In Queensland, there are two kinds of personal representative that assume responsibility for deceased estate administration: executors and administrators. The testator, or writer of a will, nominates an executor in their will to manage the deceased estate administration. The executor is trusted to enact the last wishes of the testator in accordance with the will. In contrast, the Supreme Court of Queensland appoints an administrator to oversee the estate administration of a deceased, normally when there is no will and therefore no nominated executor.
The responsibilities of the administrator and executor are similar, distinguishable only in that the executor acts in accordance with the wishes expressed in the will, while the administrator acts in compliance with the laws of succession set down in the Succession Act 1981.
Who can Administer a Deceased Estate?
When a testator selects an executor, they may nominate a professional such as a solicitor, or a family member or close friend. However, the selected executor is not always available when the time comes. On occasion, if the deceased passed unexpectedly, the nominated person may not yet be eighteen years of age. Conversely, if the will was written years before, the nominated executor may now be elderly or even have predeceased the testator. The selected executor may no longer be willing to take on the responsibility. An unwilling nominee can pass the responsibility over to the Public Trustee or altogether renounce the role. In which case, the court will appoint a suitable person as administrator.
Deceased Estate Administration in Queensland: Probate
Before anyone can start the process of deceased estate administration, a Grant of Probate must first be obtained from the Supreme Court of Queensland. The type of grant depends on the testamentary circumstances of the deceased at the time of their death. If they had a valid will when they died, and the will nominates an executor who accepts the role, then that executor will apply for a Grant of Probate. If, on the other hand, the deceased died intestate (that is, without a will) then someone must apply for a Letter of Administration.
In Queensland, beneficiaries must wait at least six months before receiving an inheritance, to allow for any claimants against the estate to come forward. Beneficiaries are often unpleasantly surprised to find that they will not receive their bequests straight away. In fact, a delay of more than a year is not unusual if there are challenges to the deceased estate administration.
Deceased Estate Administration in Queensland: Duties
The duties of deceased estate administration start with accounting for the assets and liabilities of the deceased. The personal representative must pay debts as directed by either the will or state legislation, including any tax liabilities, and then allocate the residual estate to the deceased’s beneficiaries.
The main tenet of deceased estate administration is the need to protect the estate from loss until such time as the assets can be passed on to the beneficiaries. This might include insuring property, storing valuables, or even managing a business so that it continues to trade. It also means that the personal representative, whether an executor or administrator, may need to defend the will in court against a contest or challenge. If at any time a beneficiary of the estate feels that the personal representative has not discharged their duties with due diligence, they can lodge a complaint with the court.
Deceased Estate Administration in Queensland: Who Gets Paid?
A professional executor or administrator is generally paid for managing the deceased estate administration. A family member usually undertakes the role because they are themselves a major beneficiary of the estate and have a vested interest in protecting the assets. If this is not the case, and the role is being undertaken as a favour to the deceased, the testator can leave a gift for the executor in their will. The benefactors might also choose to reward the executor out of their own provision. Alternatively, if the administration of the deceased estate was particularly time-consuming, the executor may choose to apply to the court for a commission, which can be as much as 5% of realised capital and 6% of the derived income of the deceased estate.
Deceased Estate Administration in Queensland: Trustee
Sometimes a will establishes a trust to protect an inheritance for a child or legally incompetent adult beneficiary. A trustee needs to be appointed to manage the trust, and this role sometimes outlasts the traditional process of deceased estate administration. The duties of a trustee in a deceased estate administration in Queensland are governed by the Trust Act 1973.