What is a Deceased Estate? (Qld)
What is a deceased estate? When someone passes away in Queensland, the assets and liabilities that they leave behind are known as their “deceased estate”. In most cases, the deceased will leave instructions in a will, making arrangements to discharge their debts, and bequeathing the remaining assets to chosen beneficiaries. The administration of a deceased estate in Queensland is governed primarily by the Succession Act 1981. This article looks at the question of what constitutes a deceased estate, and how such an estate is administered in Queensland.
Deceased Estate Administration in Queensland
A deceased estate must be “administered” after the death of the testator. Basically, this means that the estate must be settled, with debts paid and the remaining assets distributed in keeping with the wishes of the deceased and the laws of succession.
The timeframe to settle a deceased estate is longer than many people assume. First, the personal representative must wait for the Supreme Court to make a Grant of Probate, and then he or she must wait a mandatory period of at least six months to allow time for the will to be challenged or contested. There may be further delays in administering a deceased estate if beneficiaries need to be located, legal action is taken against the estate, or complex trusts need to be created. However, the personal representative of the deceased does have a duty to act efficiently and resolve the estate as soon as practicable. A beneficiary can complain to the court if the personal representative does not wrap up the estate within a reasonable time.
In Queensland, two types of personal representative assume responsibility for a deceased estate: executors and administrators. The usual practice is for a testator to appoint an executor in their will to manage their deceased estate. An executor may be a professional (such as a Public Trustee or solicitor), or a friend or family member of the deceased. If the chosen executor does not wish to accept the role they can ask a Public Trustee to act in their stead or file a renunciation with the Supreme Court of Queensland. The court will then appoint a replacement administrator to manage the deceased estate.
The court appoints an administrator when there is no valid will and the estate is intestate, or when the appointed executor renounces or is removed from, the role of executor.
The duties of these two types of personal representative are much alike, except that the executor proceeds according to the instructions contained in the will, and the administrator has only the laws of succession to use as their guide. An administrator is not able, for instance, to act upon the assumption that a deceased would not want their estranged spouse to inherit from their estate. An administrator must follow the laws of intestacy in Queensland that state that a spouse, even a separated spouse, is entitled to $150,000 and all household belongings as well as one-third of the residual estate.
Responsibilities of a Deceased Estate
The executor or administrator accepts responsibility for collecting the assets and debts of the deceased estate, paying debts as appropriate (including tax liabilities) and distributing the remaining assets to the deceased’s beneficiaries. The deceased estate must be protected from loss or damage, so the property should be insured and valuables secured during probate. If there is a will, the instructions of the testator should be followed as closely as possible, except where they contradict the laws of estate administration in Queensland.
What is a Deceased Estate Asset or Liability?
An asset of a deceased estate can be anything that has a value, from the contents of a bank account to real estate, stocks and shares, and other investments – anything from racehorses to artworks. A deceased estate is also likely to include numerous personal items, including jewellery, furniture and other household belongings.
Liabilities of a deceased estate include such debts as personal loans and mortgages, which are usually paid out of the proceeds of the estate. Liabilities also consist of the accumulated tax debt of the deceased, any unpaid child support payments, and can include unsecured and informal debts, such as personal loans from family and friends. These debts are paid in a legislated order, beginning with taxation and money owed to the government, with unsecured debts paid last and only if the deceased estate has sufficient assets.
What Happens to the deceased’s Pets?
Under Queensland law, a pet is property and can be entrusted in the will to a beneficiary. It is best if a testator confirms with a beneficiary before leaving a pet to them in their will, and also nominates an alternative beneficiary in case circumstances change. A pet cannot inherit directly any part of an estate, but the testator can allocate a legacy for the pet’s maintenance. A trust can be set up with funds for the care of the pet, which can be wound up upon the death of the pet and the remaining funds distributed to a nominated benefactor or charity. If there is a will, but it does not mention a pet, then they form part of the residual estate and are inherited by the residual legatee.
The wills and estate team at Armstrong Legal can help you with deceased estate administration and with any other legal advice you may need. Please call us on 1300 038 223 or send an email to arrange for an appointment.