ADMINISTER A queensland deceased estate

+ DOES THE EXECUTOR ORGANISE THE FUNERAL?

Anyone can organise a funeral. However we would suggest, if it is possible, that the Will is found and read because there may be some directions left in the Will by the Deceased person about what they would like.

If there are any arguments about the funeral arrangements, the Executor has the right to make the final decision.

+ WHO PAYS FOR THE FUNERAL?

You will need to discuss this with the funeral home, however if there is any money in the Deceased’s bank accounts, the bank will pay the funeral tax invoice should it be provided to them but otherwise the Deceased’s bank accounts will then be frozen.

If there are insufficient funds in the Deceased’s bank accounts then the responsibility for payment will usually fall to the person who organises the funeral.

If someone pays the funeral bill, they are entitled to be reimbursed from the estate for that money before payment to any beneficiaries is made.

+ WHAT DOES A WILL DO?

A Will should firstly appoint an Executor. The Executor is the person who is to administer the Deceased person’s estate. The Will should also deal with all assets which are held in the Deceased’s name as at the date of his or her death. A Will may not effectively deal with other assets of the Deceased, such as superannuation or life insurance. When you administer an estate in Brisbane, it is important to look at each of these assets to determine who will receive them upon the Deceased’s death. It is very important that any person acting as the Deceased’s Executor follows the terms of the Will exactly.

+ WHAT DOES AN EXECUTOR OF A WILL DO?

An Executor’s job is to collect the Estate assets, pay the Estate debts and then distribute the Estate in accordance with the terms of the Will. Sometimes as part of the responsibility to administer an estate in Brisbane, the Executor will be required to defend the Estate from various claims from debtors of the Deceased or from the Deceased’s family members who may commence Court proceedings against the estate to dispute the terms of the Will. In those circumstances, the Executor’s job in those circumstances is to uphold the terms of the Will and to maximise the value of the Estate so far as is reasonable. If the Executor faces a claim which is strong then the Executor should look to settle the claim before incurring significant costs.

+ HOW DO WE FIND THE WILL?

Hopefully the Deceased person has told their Executors of their appointment and where the original Will was located.

If they did not, then hopefully the Deceased person’s accountants or financial planners will have a copy. Alternatively a copy might be in the Deceased person’s private papers at home.

If you are unable to find the Will after some initial searches, then The Estate Lawyers would be pleased to assist you by placing advertisements for other lawyers.

+ WHAT DO WE DO IF THERE IS NO WILL?

If there is no Will because it cannot be found, it could be that the Deceased person died without a Will, meaning their estate is to be administered in accordance with the Queensland intestacy laws.

If a copy of the Will can be found, not the original, The Estate Lawyers can represent you to apply to the Court for a Grant of Probate to issue in relation to the copy of the Will.

+ WHAT IF SOMEONE ASKS FOR A COPY OF THE WILL?

If you are in possession of the Will and a person asks you for a copy, you are obliged to provide them with a copy pursuant to s33Z of the Succession Act.

Regardless of this section of the Act, if you do not provide a copy of the Will when asked, it creates suspicion which could otherwise be avoided.

The Estate Lawyers will always recommend that anyone in possession of a Will of a Deceased person provide a copy to anyone who asks for it.

+ WHAT IS PROBATE? WHAT IS LETTERS OF ADMINISTRATION?

A Grant of Probate or a Grant of Letters of Administration is an Order of the Supreme Court of Queensland.

The Order can be obtained through the Court Registry without the need to attend upon any Court in person.

Whilst it is possible to administer a Deceased estate in Queensland without a Grant of Probate or a Grant of Letters of Administration, it is generally required in most Queensland estate administration matters.

The Grant of Probate or the Grant of Letters of Administration are the Queensland Court’s approval that the Will of the Deceased is their last Will and the person with the Grant is the person entitled to administer the Deceased’s estate.

+ WHO SHOULD APPLY FOR A GRANT OF PROBATE?

The Executor named in the deceased person's Will is the appropriate person to apply for a Grant of Probate. If the Will names more than one person as the Executor of the estate, then those persons named should apply for a Grant of Probate jointly.

+ WHAT'S THE DIFFERENCE BETWEEN A GRANT OF PROBATE AND GRANT OF LETTERS OF ADMINISTRATION?

A Grant of Probate is obtained when a deceased person has a valid Will.

There are two types of Grant of Letters of Administration.

One is a Grant of Letters of Administration on intestacy where the Deceased person did not leave a Will.

The other is a Grant of Letters of Administration with the Will whereby the Deceased person did have a Will but the Will did not appoint an Executor or the named Executor in the Will does not wish to act as Executor or has been removed.

+ WHY IS PROBATE REQUIRED IN QUEENSLAND?

Obtaining a Grant of Probate offers protection for an Executor and for third parties. An Executor has personal liability for any mistakes they make.

Therefore if an Executor administers an estate based on a Will and then a later Will is found, they are personally liable for the differences in the bequests.

If the Executor has obtained a Grant of Probate, they will not be personally liable. Some third parties such as banks and financial institutions will require an Executor to obtain the Grant of Probate before they will close the Deceased’s bank accounts and pay the funds to the Estate.

This is because if the bank pays to an Executor pursuant to one Will, but then another Executor approaches them with a later Will, they must pay the money out twice.

+ WHAT IS THE DIFFERENCE BETWEEN AN EXECUTOR OF A WILL AND AN ADMINISTRATOR OF AN ESTATE?

These two terms are sometimes collectively referred to as a Personal Representative.

An Executor is someone who is appointed pursuant to the terms of a Will whereby an Administrator is someone appointed to administer a Deceased person’s estate pursuant to an Order of a Queensland Court.

+ HOW LONG DOES IT TAKE TO OBTAIN A GRANT OF PROBATE IN QUEENSLAND?

The time to obtain the Grant of Probate in Queensland is largely dependent upon the workloads of the Court Registries. In Brisbane for example, it might take approximately eight weeks from when you instruct The Estate Lawyers until the Grant of Probate issues. If the Grant of Probate is sought from another Queensland Supreme Court Registry, the time could be as little as five weeks from when you first instruct The Estate Lawyers to represent you.

+ WHO PAYS FOR THE ESTATE'S LAWYER?

If an Executor engages a lawyer to assist to administer an estate in Brisbane, all legal fees are payable from the estate. At The Estate Lawyers, we don’t want to see our Executor clients dip into their own pockets to pay estate costs more than they have to, even if they will be reimbursed from the estate later. If paying legal fees as an Executor from your own pocket is a concern, talk with us about acting on the basis that once the estate assets are realised, then we receive payment at that time.