How can MCG Legal assist me with regards to a deceased estate?
Our experienced Estate lawyers can assist you with all matters relating to deceased Estate administration including;
- Preparing and assisting you to complete the documents needed to apply for a Grant of Probate or Letters Of Administration
- Advising you about the rights and responsibilities of an Executor
- Assisting you to identify, locate and collect the deceased’s assets
- Arranging for advice to be given to you on the possibility of any tax liability
- Advising you about the legal order in which debts must be paid and the assets distributed
- Explaining the legal order of distribution of the estate in situations where there is no Will
- Assisting you to draw up the statement of account and distribution report for the beneficiaries
What is Probate?
Wills are not recorded on a central register, so applying for a Grant of Probate is the process of proving and registering the last Will of a deceased person in the Supreme Court of Queensland.
Probate is required to protect the interests of those parties who hold the deceased’s assets (for example: banks, superannuation funds or other financial institutions). Probate in effect provides security to those parties who are releasing estate assets, that they are in fact releasing the assets to the correct person. They must be satisfied that the person requesting the assets be released is properly authorised to receive the asset.
To obtain a Grant of Probate, the Executor named in the Will must apply to the Supreme Court of Queensland. If approved, the Executor is given the Grant of Probate to confirm that the author of the Will has died, the Will is authentic and the Executor is who they say they are.
What is an Executor?
An Executor is a person appointed in a Will to deal with the Estate assets.
What are an Executor's duties?
An Executor’s duties can be summarised as follows:
(a) to arrange for the burial or cremation of the body
(b) to take control of all assets and to collect all debts due to the estate
(c) to use the money or assets in the estate to pay all the deceased person’s debts
(d) to make sure the assets of the estate aren’t wasted
(e) to distribute the estate’s assets to the people the Will says should have them
In effect the executor administers the Will. Being named as Executor is a responsibility which should not be taken lightly, as an Executor can be held personally liable by a beneficiary for any errors relating to the estate administration.
In light of the complexities of estate administration, some Executors pass the responsibility to a Solicitor. In order to properly administer a Will and deal with the relevant parties, Executors are usually required to obtain a legal document called a Grant of Probate as explained above.
Who can be appointed an Executor of a Will?
An Executor can be an individual, individuals or a trustee company like the Public Trustee. Assets are transferred to the Executor who holds the assets on trust pending payment of the estate debts and distribution to the beneficiaries.
What is involved in a Grant of Probate Application?
There are certain requirements in order for a Probate Application to be made. The steps can be summarised as follows;
- Placing a public notice in a local Queensland Newspaper and / or Courier Mail (depending on the estate circumstances and where the deceased lived)
- Placing a public notice in the Queensland Law Reporter
- Providing the Public Trustee of Queensland with Notice
- Having a solicitor draft Supreme Court documents relating to the application
What documents do you need to make application for a Grant of Probate?
We will need to obtain from you the original Will along with the original death certificate. The funeral director should apply for the death certificate and provide this to the Executor or other relative of the deceased.
What if my relative died and there is no Will or a Will is lost?
Letters of Administration can appoint such persons as the living spouse, children, parents, nieces or nephews etc to administer the Estate. The priority in which persons are granted Letters of Administration allowing them to administer the Estate are surviving spouse, children, grandchildren or great-grandchildren, parents, brothers and sisters, children of deceased brothers and sisters, grandparents, uncles and aunts, first cousins then anyone else the court may appoint.
Can a person’s wishes be followed if they die without a Will?
No notice can be taken of any wishes of the deceased which are not expressed in a Will. That is why it is important to have a Will and ensure that the Will is kept up to date to reflect your wishes. Read about what can happen after dying without a will.
My late husband and I owned our house as joint tenants. Can you assist me with the property transfer?
If a house is owned as joint tenants and a person dies then the surviving party will own the house solely. MCG Legal can assist you with the required documentation in this regard.
Who is entitled to a copy of a Will?
The following persons are entitled to be given a certified copy of a Will upon request;
a) a person mentioned in the Will, whether as beneficiary or not and whether named or not
b) a person mentioned in any earlier Will of the testator as a beneficiary and whether named or not
c) a spouse, parent or issue of the testator
d) a person who would be entitled to a share of the estate of the testator if the testator had died intestate
e) a parent or guardian of a minor mentioned in the Will or who would be entitled to a share of the estate if the testator had died intestate
f) a creditor or other person who has a claim at law or in equity against the estate
When can the estate assets be distributed to the beneficiaries?
The time taken to administer a deceased estate is determined by the size and type of estate assets. After the assets are identified and if necessary, sold, the debts must then be paid. The remainder of the estate can then be distributed to the beneficiaries.
An estate statement of account and a distribution report should be prepared by the Executor to be given to the beneficiaries when they receive their share of the estate.
This shows what the assets were, how much money resulted from any sale of assets they raised and what expenses and debts were paid from the proceeds.
When an Executor is applying to the Supreme Court for commission for his/her administration, detailed accounts have to be filed with the Probate Registry. All receipts and payments by the executor must be properly approved by the court.
Does a deceased estate have to pay tax?
Any income earned by an estate after the death of a person is still deemed income. A separate tax file number must be obtained from the Australian Tax Office. There may be capital gains implications when the assets of a deceased estate are distributed. At MCG Legal, we work closely with accountants to ensure that a deceased estate is properly managed from a taxation perspective. If not done properly then the Executor can be responsible for any errors.
Our experienced Gold Coast Family Law team are ready to answer your questions and guide you to the best legal resolution.