Executors and administrators have significant legal responsibilities and often need to deal with matters that are outside their areas of expertise. For example, they may need to consider the tax implications on the sale or transfer of assets, the order of payment of debts, or deal with a family provision claim being made against the estate. If you are dealing with a deceased estate, our Brisbane probate lawyers can help you through the legal process, providing advice and guidance to help you carry out your duties, and to ensure the estate is administered as smoothly and efficiently as possible.
Applying for Probate in Brisbane
Probate is a grant made by the Supreme Court that ‘proves’ the Will of a deceased person and authorises the executor to deal with the assets. The requirement to obtain probate generally depends on the size of the estate, the type of assets, and how they are held. A grant of probate may not be necessary in all circumstances and a lawyer can advise you whether a grant is needed or recommended.
Applying for probate requires the preparation of affidavits, advertising the intention to apply, and filing the application with the Supreme Court. When probate is granted, the Supreme Court deems the deceased’s Will to be their last Will and to be valid, which then authorises the executor to distribute the estate in accordance with the Will. A grant of probate allows you to gain access to the deceased’s bank accounts and superannuation funds and to transfer property.
Applying for letters of administration
A grant of letters of administration may be required when a person dies intestate (without a Will). On application, the court will appoint an administrator (often the next of kin), allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.
As there is no Will, the deceased’s assets are distributed according to the laws of intestacy, which is a prescribed formula set out in the legislation relevant to that jurisdiction.
Administering an estate
Administering a deceased estate including any trusts that form part of the estate can be complicated and stressful for both beneficiaries and executors.
Once a person has been granted probate or letters of administration, they can gather the deceased’s assets and administer the estate according to the Will or the laws of intestacy. Before distributing property to beneficiaries, an executor or administrator must pay the debts of the estate, including funeral and administrative expenses.
Depending on the type of assets in the estate, an executor may also need to safeguard any income, invest money not currently required, and insure property. If you are an executor, it is a good idea to get some legal advice on what you need to do and any steps you should take to maximise the value of assets. This can be even more important in circumstances in which there is an estate dispute, requiring a delay before the distribution of the balance of any property to beneficiaries.
Regrettably, not all deceased estates are able to be administered without a dispute between family members, executors, beneficiaries, and/or would-be beneficiaries and you may find yourself involved in an estate dispute. This may concern a challenge to the validity of a Will or a family provision claim being made by somebody seeking a share or greater share from the estate of a deceased person.
This can be a confronting time, particularly for executors and administrators who have specific legal responsibilities in carrying out their role. Legal guidance in such circumstances is always recommended and our probate and estate administration lawyers can assist in this complex time.
If you have recently lost a loved one and need help administering the estate, our Brisbane probate lawyers will provide guidance and reassurance to help finalise matters while ensuring your duties as executor or administrator are upheld.