Obtaining Probate and Estate Administration
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.
Did you know that Queensland Enduring Power of Attorney is invalid in New South Wales for Lifestyle and Health Issues?
If you are living in Queensland and have completed an Enduring Power of Attorney, if you move into the state of New South Wales or are taken to a New South Wales hospital for treatment and lose your mental capacity, the Power of Attorney will be useless in relation to health and lifestyle issues in the state of New South Wales.
In 1983 the New South Wales government changed the law in New South Wales so that an Enduring Power of Attorney no longer applied to health and lifestyle issues. For example, previous to 1983 your Enduring Power of Attorney allowed your attorney to sign on your behalf for finance, property transactions, medical authorisation forms or any paperwork to do with booking you into a nursing home or any other assisted accommodation. From 1983 onwards the legislation changed so that a separate Enduring Guardian was required to be executed to specifically cover health and lifestyle issues. The Powers of Attorney were restricted to finance, property transaction and other general issues. The change in the law was not well publicised and many people in New South Wales who have previously an Enduring Power of Attorney would be very surprised to learn that their document does not apply to health and lifestyle issues.
Similarly, Queensland residents who moved to New South Wales or who live in the border area and might be taken to a Tweed Heads hospital for treatment can also be adversely affected.
If you are unsure as to whether your Enduring Power of Attorney applies in New South Wales or you wish to obtain advice in relation to completing an Enduring Guardian, please complete our online enquiry form or phone Lesley or Sam on 1800 621 071 or email us. A helpful Attwood Marshall consultant will telephone you to make an obligation free appointment and send you a fee information kit.
Did you know that your Enduring Power of Attorney in New South Wales no longer applies to Health and Lifestyle Issues?
Many New South Wales residents are unaware that the New South government changed the laws in relation to Enduring Powers of Attorney in 1983. Previously Enduring Powers of Attorney applied to all the usual areas, e.g. financial, property transactions, health (including medical) and lifestyle issues.
In 1983 (Power of Attorney Act 1983) the New South Wales government split the functions of the Enduring Power of Attorney and restricted its use to that of financial, property transactions and general issues. Importantly, they specified that health and lifestyle issues would now be governed by a separate document called an Enduring Guardian.
The Enduring Guardian is required to be used for all issues concerning health (e.g. medical authorisation for treatment, signing indemnity forms for surgery etc.) and lifestyle issues (e.g. placing someone into a retirement village or nursing facility).
Many people are blissfully unaware of the change in the law and believe that they have safely secured their future by having a signed enforceable Enduring Power of Attorney. Sadly, this document does not cover health and lifestyle issues since 1983 and many people are finding out the hard way that these documents are now out of date. In many cases elderly spouses are required to apply to the Guardianship Tribunal in order to obtain permission to make these decisions for their spouse. The procedure before the Guardianship Tribunal can be lengthy and frustrating for elderly people, particularly in circumstances where they urgently require the ability to sign on behalf of their spouse. This applies equally to the families of people affected by the sudden onset of a condition which deprives the person of their mental capacity (e.g. stroke, head injury, Alzheimer's Disease etc).
Thinking of Contesting a Will?
Contact us for fee advice on contesting Wills - "no win no fee" in approved cases
If you have been left out of a Will or feel that you have not been adequately provided for in someone's Will, please contact us to arrange an obligation free appointment for preliminary advice. Our experienced lawyers will be able to provide you with an assessment of your prospects of bringing a claim and outline the terms upon which we are prepared to accept your instructions.
In many cases we agree to act for you on a "no win no fee" basis. This means that we do not charge you anything for costs and disbursements until the end of the case and we only charge you if we win!
What have you got to lose?
Give us a call to arrange your free appointment or simply fill out the online enquiry form and we will be back in touch with you to provide advice.
We act for people all over Australia so please do not hesitate to contact us or send us an email with any queries.