Estate Administration

Estate Administration is the process in which the Executor appointed by the deceased person’s last Will distributes the assets of the deceased person’s estate to their beneficiaries.

The administration of an Estate involves the collection and distribution of the assets and payment of liabilities of a deceased person in accordance with their Will or the law.

It’s important to understand that the role of the Executor is different to that of someone who has Power of Attorney. An Executor has the authority to carry out the deceased person’s wishes after they have passed away, while someone who holds Power of Attorney has the authority to make decisions on their behalf while they are alive.

What is Probate or a Grant of Probate?

When a person dies leaving a Will, certain legal procedures have to be followed before the estate can be distributed to beneficiaries.

The Will should have appointed an executor who is responsible for completing these procedures.

If you are appointed as an Executor by a person who has died leaving a Will, you may need to obtain a Grant of Probate in order to administer the Estate.

A Grant of Probate is an order granted by the Supreme Court of Queensland and verifies the authority of the Executor to deal with the Estate. It essentially acts as an indemnity and offers protection to banking institutions and other companies who hold money on behalf of the deceased person as it states that the Will is the last valid Will of the deceased and therefore the company is releasing the deceased person’s funds to the right person, the Executor of the last valid Will.

As the process can be complicated, Executors often need legal assistance to apply to the Court for Probate.

Once satisfied with all aspects of an application, the Court issues a Grant of Probate of the Will to the Executor in the form of a sealed document. This document is the legal authority for the Executor to deal with the assets of the Estate. The Executor’s duties are then to identify and collect the assets, pay the deceased’s debts and distribute the Estate according to the Will.

A Grant of Probate can only be made if there is a Will. If you cannot find a Will in the deceased’s personal papers, check with their bank or solicitor, or the Public Trustee of Queensland.

Probate will almost always be necessary if the deceased died with over $50,000 in a bank, and evidence of probate is often required before distribution. Banks may require evidence of probate before releasing the deceased’s funds or assets.

What is Letters of Administration?

Where a person dies without a Will, or with a Will that does not have a valid Executor appointed, the person entitled to deal with the Estate of the deceased may be 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,” and they have the same role as an Executor.

For most Estates the process of obtaining a Grant of Probate or a Grant of Letters of Administration takes approximately 8 to 12 weeks, but this can vary significantly depending on:

• The nature of the assets of the Estate;
• The complexity of the Will; and
• Establishing who are the deceased’s next of kin to determine who is entitled to be Administrator or who the beneficiaries are.

When is Probate or 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.

Process of applying for a Grant of Probate or Letters of Administration

You can apply for a Grant of Probate or Letters of Administration through a solicitor, a trustee company, the Public Trustee of Queensland or online services.

We strongly advise getting the assistance of a solicitor. At Turner Freemen a solicitor will advise you on all the relevant legal issues surrounding probate and assist you to deal with any difficulties. Being an executor is a time consuming and demanding role. A solicitor can simplify the process for all concerned.

If no executor was appointed in the Will, the court will appoint an administrator, usually the major beneficiary, to carry out the terms of the Will.

Roles and duties of an executor of a Will

As an Executor of a Will or Administrator of the Estate you have a number of duties and responsibilities you must carry out upon the deceased’s passing. These may include organising the deceased’s funeral, paying outstanding bills, debts and taxes.

These must be carried out diligently and as per the deceased’s wishes stated in their last Will.

For a full list of duties and responsibilities of an executor, please visit the Executor of a Will page.