Estate Administration in Queensland
Estate administration refers to the set of rules and procedures that govern the management of a deceased estate. In Queensland, estate administration follows a mixture of legislation and common law, with the key piece of legislation being the Succession Act 1981. In Queensland, when someone dies and leaves a will, an executor named in the will is usually responsible for the estate administration. Where there is no valid will, an administrator empowered by the Supreme Court will undertake the estate administration. The duties of estate administration are largely identical for executors and administrators. This article defines the process of estate administration in Queensland.
Executors and administrators
In Queensland, there are essentially two types of personal representative that assume responsibility for estate administration: executors and administrators. An executor is appointed to oversee estate administration by the will of a deceased, while the Supreme Court of Queensland appoints an administrator to undertake the duties of estate administration.
Estate Administration in Queensland: Executor
A validly drawn will usually appoints one or more executors. However, these named individuals are not always able to accept the role. For instance, the executor may pre-decease the testator (the person who made the will). A nominated executor may be unsuitable if they are not yet eighteen years of age when the testator dies, in which case the Supreme Court of Queensland may appoint the child’s guardian as administrator. Perhaps a more common scenario is when an executor named in a will does not wish to accept the duties of estate administration. This can occur when a testator names an executor without consulting them at the time, or when the circumstances of the nominated executor change significantly between the time when the will was drafted and the death of the testator. If the named executor does not wish to accept the role they should avoid undertaking any of the acts of estate administration (such as paying any debts of the deceased or communicating with creditors), and formally renounce the role. In this circumstance, another person named as executor in the will can take the duties up alone. Alternatively, if there are no other named executors, then the Supreme Court will appoint an administrator to manage the estate through the Grant of Letters of Administration.
Estate Administration in Queensland: Administrator
The Supreme Court will usually grant Letters of Administration to a beneficiary of the estate, most commonly the spouse or children of the deceased. Where there is no beneficiary available or suitable to fulfil the role of administrator, even a creditor of the estate can be appointed to undertake the estate administration in Queensland.
Estate Administration in Queensland: Trustee
On occasion, a will appoints not only an executor but also a trustee to manage trusts established by the will. This is most common where there are minor children who are beneficiaries of the estate, or there are adult beneficiaries who are not capable of managing their own affairs. While the duties of an executor end once the assets of the estate have been distributed to the beneficiaries, the duties of a trustee continue until the terms of the trust are satisfied, perhaps many years in the future. The rights and duties of a trustee are set out in the Trusts Act 1973 (Qld).
Estate Administration in Queensland: Duties
One of the first steps in estate administration is the application for a Grant of Probate or Letters of Administration. These grants empower the personal representative to perform the next steps in estate administration, the collection of assets of the deceased, the payment of any debts, and the distribution of the residual estate to the beneficiaries as set out in the will. The executor or administrator should ensure that the wishes set out in the will are followed exactly unless this is inconsistent with the laws governing estate administration in Queensland. For instance, a will may direct that certain property is gifted to a beneficiary, but if the estate is subject to extensive debts, the bequeathed asset may need to be liquidated to discharge those debts.
One of the responsibilities of estate administration is the protection of the assets of the estate for the benefit of the beneficiaries. If the personal representative does not act diligently to protect the estate, the beneficiaries can complain to the Supreme Court.
Estate Administration in Queensland: Remuneration
Provision can be made in a will to pay an executor for taking on the responsibilities of estate administration. If there is no such provision, the court may order that an executor or administrator receive remuneration from the estate, including the repayment of any costs incurred during the estate administration.
If you need more information about estate administration in Queensland or need guidance on the duties of executors and estate administrators, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.