Cooper Grace Ward’s estate administration and disputes team provides expert advice to clients about all aspects of estate management.
Estate administration refers to cataloging and managing a deceased’s assets. Then, any debts are paid off and the estate assets are distributed to beneficiaries.
Settling an estate can take anywhere between six months and several years to administer. This time frame depends on the size of the estate, the age of beneficiaries, and whether any disputes arise.
Greater complexities are arising in estates due to increases in personal wealth and the different ways clients own their assets. Estate disputes are becoming more common, often resulting from the terms of the Will, the needs of the potential beneficiaries, how assets are owned, or the conduct of the executor and beneficiaries.
The emphasis for executors is on compliance with the high level of duty and responsibility arising from their position. They also need to take care to avoid the risk of personal liability.
For beneficiaries, it can be difficult to determine whether the executor is providing them with the correct information and whether the estate is being properly administered.
Probate is the legal process through which a deceased person’s estate is administered and distributed. Sometimes referred to as estate administration, it involves validating the will, settling debts, and ensuring that assets are allocated according to the deceased’s wishes.
Understanding probate is crucial, as it provides clarity and structure during a difficult time for loved ones. This process helps prevent disputes among heirs and ensures that all legal obligations are met. Additionally, probate can protect the deceased’s assets from potential claims and ensure a fair distribution.
Engaging with a probate lawyer during this process can further streamline proceedings, ensuring compliance with local laws and regulations while minimising potential complications that may arise.
Our estate administration team provides expert advice delivered with caring, personal attention in relation to all estate administration matters, including:
Our team of experienced lawyers provide estate dispute resolution, litigation services and expert advice to solve estate disputes, including:
Estate administration often presents challenges that can complicate the process for both executors and beneficiaries. One of the primary issues is asset management, which involves identifying, valuing and distributing the deceased’s assets in accordance with the will or intestacy laws. This can be particularly complex if the estate includes diverse real estate assests, investments and personal property.
Similarly, handling debts and liabilities can be challenge for the executor who is responsible ensuring that all outstanding debts, taxes and obligations are settled before any distribution to beneficiaries is completed.
Understanding the legal obligations and compliance with probate laws can be daunting, and requires a thorough understanding of legal procedures and documentation. Executors must navigate these legal intricacies to avoid potential disputes among beneficiaries and ensure the estate is administered correctly and fairly.
Our team have extensive experience in resolving disputes, navigating both mediation and litigation to achieve favourable outcomes for our clients. We approach each case with a strategic mindset, tailoring our methods to suit the unique circumstances and objectives of our clients.
In mediation, we work to facilitate constructive dialogue and foster mutual understanding to reach amicable settlements that preserve relationships and minimise conflict. When litigation becomes necessary, we are committed to advocating for our clients’ interests, leveraging our extensive legal expertise and meticulous preparation to present compelling cases. Our proven track record underscores our dedication to delivering effective and efficient resolutions, ensuring our clients’ needs are at the forefront of every decision we make.
This will vary depending on your particular circumstances. However, one of the first things you should do is contact a funeral director to discuss the funeral arrangements, taking into account any specific requests the deceased may have made either in their Will or verbally.
You will also need to locate the original Will (if any) to find out who the executors are.
Once the original death certificate has been received from Births, Deaths and Marriages (normally two to three weeks from lodgement of the cause of death certificate by the funeral director) the executors can start to deal with all aspects of the estate administration. This is not to say they cannot do this before then, but most organisations will require a certified copy of the death certificate.
At this stage, depending on the deceased’s assets and liabilities and the family dynamics, it is worth obtaining professional advice on how to proceed. In the long run, this can save you time, money and sometimes heartache.
Any person who pays for the funeral is entitled to be reimbursed from the deceased’s estate. This is normally a first charge on the assets of the deceased and most banks will release money on receipt of the invoice from the funeral director. However, certain expenses you may think qualify as estate expenses sometimes don’t.
This depends on the amount of work and time involved in finalising an estate. At an initial meeting, we will discuss what needs to be done and discuss with the executors who will be responsible for doing what. Some clients prefer us to handle everything while others prefer to take a more hands-on approach, which keeps the costs down.
If a Will is unable to be found, then the deceased’s next of kin would need to satisfy the court of their entitlement and apply for a grant of letters of administration on intestacy. There is an order for who qualifies as next of kin in the legislation.
A Will must be in writing and needs to be signed and dated by the Willmaker (or someone else in the Willmaker’s presence and at the Willmaker’s direction) in the presence of two witnesses. The witnesses must also sign in the presence of each other and the Willmaker. Under certain circumstances, an unsigned document, typed or handwritten notes, or letters may be accepted by a court.
Executors are required to produce any document(s) to the court that mentions giving away assets. The requirement is regardless of whether it is signed or not or dated or not, and also applies to electronic documents. The court then makes a decision about whether they are to become part of the Will (as a Codicil) or not. This is a complex, lengthy, and expensive process. It creates uncertainty and stress for the executors and the beneficiaries as well as additional expense to the estate.
Probate is the procedure of obtaining the court’s official recognition of the deceased’s Will as well as endorsing and protecting the right of the personal representative to administer the deceased’s estate.
If there is no Will, or an executor renounces their role so that there is no executor to administer the deceased’s estate, then letters of administration is the process of the court granting and endorsing a person as the deceased’s personal representative to administer the deceased’s estate, either in accordance with the deceased’s Will, or, if there is no Will, in accordance with the rules of intestacy.
Essentially, a grant of probate or letters of administration enables a personal representative to formally prove their title to acquire assets forming the deceased’s estate.
Probate is not always required. Whether probate is needed will depend largely on the assets in the estate and how they are owned.
Probate is usually necessary when there are significant assets such as large sums of money in bank accounts, numerous real properties, or complex assets.
Probate helps to protect executors against possible claims as they are administering the estate in accordance with a court-approved Will.
Although Queensland currently does not require a grant of probate or letters of administration (Grant) to deal with every property transaction, other states do. Some institutions like banks and superannuation funds may require a Grant to allow you to deal with accounts. The value of any shares may also determine whether you require a Grant.
There are various ways of dealing with this aspect. We will discuss this in detail at an initial meeting.
There is no strict timeframe imposed on an executor as to when they must distribute assets to beneficiaries. However, we recommend that executors do not make any distributions until at least six months from the date of death. The reason for this is any person who wants to bring a family provision application against the estate must give notice within six months of the date of death. If an executor distributes estate assets before the six month date and a family provision claim is then notified and made within the time limits, the executor could be held personally liable to that applicant. Waiting the six months, and advertising of the intention to distribute if you have not advertised for your application for a Grant, gives the executor protection against that personal liability if a claim is notified outside the time limit and there is nothing to claim against.
Also, interest is payable on gifts of money made under a Will if the estate administration takes longer than one year to finalise.
A number of avenues are open to the personal representative in cases where the beneficiaries cannot be located after the usual enquiries, advertisements, and investigations have proved unsuccessful.
If a specific gift has been provided in the Will and that item has ceased to exist or has been sold or otherwise disposed of by the deceased then that gift may fail. There are a number of issues that will need to be considered before any decision can be made about whether it is as simple as that.
A family trust is a separate entity to the deceased and as such a trust’s assets do not form part of a deceased’s estate. Instead, the family trust will continue in accordance with its trust deed.
If the deceased was the trustee of the family trust, that is, the controller of the family trust, then it is important to determine who the new trustee is. The trust deed should provide what happens on the death of a trustee. In some cases the trust deed will nominate the deceased’s legal personal representative as the new trustee or provide that the deceased may appoint a new trustee in their Will.
Most deeds have a role (often called the appointor or the principal) for a person who can remove a trustee and appoint a new trustee. That person may be the executor or legal personal representative. However, the deed may nominate a particular person to take on that role. The Will may nominate someone to take on that role.
Unpaid present entitlements or loans owed to the deceased by the family trust are a debt that the executor is required to collect. This can cause unforeseen issues if there is a business or single asset in the trust.
Whatever the circumstance, you should seek legal advice to ensure that the appointment of the new trustee is effective and in accordance with the trust deed.
‘Family provision’ applications are made when someone believes they have not received a fair share of an estate.
‘Proof in solemn form’ applications are made to ask a court to decide if a person’s Will is valid if it is believed that they may not have had the legal capacity to make it or were unduly influenced to make it in a particular way.
Applications for court approval of informal Wills are made when someone has written a Will that does not comply with the legal requirements to be valid.
Applications for ‘statutory Wills’ are made to a court to make a Will on behalf of people who do not have capacity to make one themselves (often due to an intellectual disability) while they are still alive.
In Queensland, the people who can bring a family provision application are:
a spouse (including de facto and same sex spouse)
a child (including a step-child and adopted child)
any parent of the deceased, a parent of a minor child of the deceased, or any person under the age of 18 years, if that person was wholly or substantially maintained or supported financially by the deceased.
The rules about who can bring a family provision application are different in each state.
In Queensland, a person who wishes to make an application must give notice of their intention to do so to the executor or administrator of the estate within six months of the date of death.
They must then file and serve their application within nine months of the date of death.
There may be circumstances where the court will allow an extension of time. However, there must be very good reasons why the time frames were not adhered to and there are no guarantees that the court will allow an extension.
The timeframes for bringing an application are different in each state.
Generally, the legal costs of parties to a Will dispute will be paid by the estate, if there are enough assets to do so.
However, if any party acts unreasonably, causes undue delay or brings frivolous claims, their costs may not be paid and they might even be ordered to also pay the other parties’ legal costs in the matter.
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