Attwood Marshall Lawyers specialise in both Queensland and New South Wales in this complicated area of law.
With our main office positioned at Coolangatta on the border of Queensland and New South Wales, we have historically performed legal work in both jurisdictions for over 60 years.
There are stark differences in the law between Queensland and New South Wales which apply to many issues in Estate Planning, Probate and particularly with respect to Enduring Powers of Attorney. Many deceased Estates have assets that straddle both the jurisdictions of Queensland and New South Wales and sometimes there can be certain tax and stamp duty advantages in the administration of the Estate, depending on which state the Probate is taken out in.
Obtaining probate of a will in Queensland
Obtaining probate of a Will is the process of applying to the Supreme Court to approve or authenticate the Will so that the executors can call in the assets of the estate and distribute the proceeds to the beneficiaries.
The purpose of obtaining probate of the Will is to satisfy the relevant government departments, banks and other institutions that hold the assets of the deceased that they can release those assets to the executors with confidence that the Will is the last Will of the deceased and has been properly executed.
In order to obtain probate the executors must first advertise their intention to obtain probate in the local newspaper of the area where the deceased resided and in the Queensland Law Reporter as well as notifying the Public Trust Office. This process ensures that anyone else holding a later Will which may have been signed by the deceased will be identified through the advertising process. After the prescribed time limits have expired in relation to the advertising, an application is then made to the Supreme Court for probate of the Will. This is a Supreme Court application and must be in the prescribed form. The original Will and Death Certificate are annexed to the affidavit of the executor or executors seeking probate. The Probate Registrar, if satisfied with the application, issues a probate document bearing the seal of the Supreme Court which is sent to the solicitors acting for the executors. This process takes approximately 8-12 weeks from the date of death.
Obtaining letters of administration in Queensland
Letters of administration are required when the deceased has died intestate (i.e. without a Will or an enforceable Will) or where the nominated executor has themselves died or is unable to undertake their duties as executor (e.g. where the executor has renounced).
Letters of Administration without a Will
In this case the administrators will usually be relatives of the deceased that are entitled to the estate in accordance with the laws of intestacy.
Queensland is governed by section 35 – 37 of the Succession Act 1981 (Qld) and sets out the order of people who inherit the estate of the deceased where there is no Will. For example, if the deceased is married and has children, if he or she dies, the whole of his or her estate will pass to the surviving spouse. If there is no spouse then the next in line to inherit will be children of the deceased. If the deceased has no spouse or children, then normally the next in line to inherit would be the parents of the deceased. There are different rules that apply for people who have de facto spouses, stepchildren and other issues but basically this is the order of inheritance in the event that people do not have a Will.
There are various issues which flow from not having a Will which can impact upon your family or relatives. This is why it is very important that everyone has a Will rather than just leaving it to the rules of intestacy.
Letters of Administration with the Will
In the second example above where the executor has died or renounced, someone must apply to be the administrator of the estate. This will generally be one of the beneficiaries named in the Will or a close relative but this is not always so. Whoever applies to be the administrator takes on the usual duties and obligations of an executor when administering an estate. It is very important that whoever applied to be an administrator of the estate understands these responsibilities and obligations before doing so.
Administration of the Estate
Once probate has been obtained, a certified copy of the probate is sent to all relevant banks, financial institutions, government departments and assets are either transferred over to the executors for sale or released to the executor’s solicitors. After all the assets have been called in and converted, the funds are then distributed to the nominated beneficiaries in the Will, after payment of all relevant estate debts, accounts and costs.
For all enquiries Obtaining Probate and Estate Administration, please contact us on 07 5536 9777 or by email [email protected].