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Deceased Estates

When a person passes away, there are many matters that need to be considered.  If the deceased person left a valid Will there will usually be an Executor appointed who will have the role of considering the relevant matters and administering the estate.  In very simple terms the role of the Executor is to:

  • Call in the assets of the estate
  • Pay the debts of the estate from the estate funds
  • Distribute the rest of the estate to the beneficiaries.

It sounds simple but usually there is more to it than people anticipate.   If you aren’t familiar with the role, it can sometimes feel overwhelming:

  • Arranging the funeral
  • Dealing with banks
  • Keeping beneficiaries informed and ensuring distributions are accurate
  • Working with the Accountant (or directly with the ATO) to ensure tax obligations are met
  • Dealing with digital assets and social media accounts
  • Reviewing transactions of the attorney under Enduring Power of Attorney
  • Dealing with household chattels and personal effects
  • Ensuring estate assets are safe, secure and insured
  • Notifying relevant entities – Medicare, Centrelink, Clubs & organisations that the deceased was a member of
  • Defending a challenge to the Will
  • Dealing with superannuation funds & life insurance companies
  • Preparing and lodging documents with Titles Queensland
  • Considering executor commission

Our solicitors have years of experience and have assisted hundreds of executors with estate administration (or have been executors themselves).  We can explain in plain English the steps that need to be taken in the administration of a particular estate and the executor can let us know what steps (if any) they require assistance with.  We also inform the executor their obligations (and there are quite a few). 

We also regularly advise beneficiaries of their rights.  We commonly deal with the executor on behalf of beneficiaries to ensure the estate administration is being properly progressed.

What is Probate?

A Grant of Probate is confirmation from the Supreme Court that any document that purports to be the last Will of the deceased is in fact their last valid Will. 

It also confirms who the estate representative is (the executor) which is useful when a third-party wants to be certain they are dealing with the ‘right person’ on behalf of the estate.  

Who needs a Grant of Probate?

In Queensland, not all estates require a Grant of Probate and the decision to apply for a Grant of Probate will often be made once the assets are identified.  

A third-party may refuse to release estate assets until they are provided with a certified copy of the Grant of Probate.  For example:-

  • Banks if the funds held are over that bank’s threshold (usually about $50,000 – $70,000)
  • Retirement Villages to release the exit entitlement
  • Aged Care Facilities to release the Refundable Accommodation Deposit (RAD)

In some circumstances, even if you would otherwise be able to obtain estate assets without getting a Grant of Probate, it may be sensible to obtain a Grant.

Superannuation Death Benefit Claims

Superannuation only forms part of the estate if the superannuation fund pays the benefits to the deceased person’s estate.  If that happens, the benefits will be dealt with in accordance with the terms of the Will (or rules of intestacy if no Will).

If the superannuation fund pays the benefits “outside of the estate” (for example to a spouse, child or dependant of the deceased) then the benefits will not be governed by the terms of your Will. 

If a deceased person made a valid Binding Death Benefit Nomination (BDBN), the superannuation benefits shall be paid to the beneficiary nominated.

If the deceased did not make a valid BDBN, the fund’s rules may allow the trustee of the fund to decide where superannuation benefits are paid.  

We regularly assist clients with claims for superannuation benefits including, objecting to decisions made by the trustee of the fund.  If required, this can lead to a complaint to the Australian Financial Complaints Authority (AFCA).

What if there is no Will

If a person dies without a valid Will, they are said to have died intestate.  Without a Will, no executor will have been appointed and there will be no chosen beneficiaries.   The legislation sets out:

  • Who has highest priority to administer the estate (known as the Administrator) and
  • Who will receive the estate.

The beneficiaries often depend on whether the deceased left a surviving spouse and/or children.  The definitions of those words for estate administration purposes may be different to the common understanding of who is a person’s ‘spouse’ or ‘child’.  Accordingly, to ensure proper administration of the estate, legal advice from an experienced professional is recommended.

In some cases, it may appear that the deceased didn’t leave a valid Will but a document that sort of looks like a Will may be located amongst their possessions (or on their mobile phone).  Our experienced team can advise on the effect of a document that might be a Will (even though it may not meet all the formal requirements of a valid Will).  We can also assist with an Application to the Court for Probate of a document that doesn’t ‘tick all the boxes’ of a valid Will to be granted.

If you have any queries about deceased estates or estate administration, we’re here to listen and here to help.  Please call us on 07 5443 9600.