After a person dies, someone must look after their assets and pay their debts. Although the person is no longer here, their affairs still must be finalised. The Will often appoints the person who completes this process.
Where a person is appointed by a Will, that person is called “an executor”.
The person making the Will chooses an executor to carry out their wishes. The executor manages the estate and distributes assets to beneficiaries. An executor may be a friend, a relative, or a professional.
Many people do not realise how complex and time-consuming estate administration can be. The role may become a significant burden.
What are the legal steps that are taken after someone dies?
The executor of a Will may need to apply for probate in the Supreme Court of Queensland. A lawyer usually assists with this process. Probate is a court order that confirms the Will is valid and confirms the executor can administer the estate.
When do I need to apply for Probate?
There is no statutory requirement to obtain probate, and small estates may not need a grant.
The need for probate depends on the assets in the estate and the requirements of the organisations holding those assets.
The executor should contact banks, insurers, and other asset holders to confirm their requirements. A lawyer can assist with this process.
Where a dispute arises or is likely to arise, the executor should apply for probate. Without authority, a person dealing with the estate may become personally liable to beneficiaries.
How to apply for Probate
An executor must first identify the deceased’s assets and debts.
They must then advertise a notice of intention to apply at least fourteen days before filing the application. This notice informs creditors and potential claimants and allows them to raise objections.
The following documents are filed with the Supreme Court:
- Application for Probate
- Original Will and Death Certificate
- Supporting Affidavit
- Affidavit of Publication and Service
The affidavit confirms the relationship between the executor and the deceased. It identifies the Will and death certificate. It also explains irregularities such as name differences or issues with beneficiaries where required.
Sometimes additional documents must be prepared to explain unusual circumstances. An estate lawyer can provide advice where needed.
Paying any debts and distributing the assets
The executor must pay all debts before distributing the estate. They then distribute the estate according to the Will.
After the Supreme Court grants probate, the executor must send evidence of the grant to institutions holding the deceased’s assets, such as banks and share registries. These institutions then transfer the assets according to the executor’s instructions.
If the deceased owned land solely in their name, the executor or beneficiary must lodge the relevant application with Titles Queensland together with the grant of probate to transfer ownership.
If the deceased owned land in more than one jurisdiction, the executor may need to apply to the Supreme Court in each jurisdiction for a reseal of the grant before transferring the land under the Will.
This is general information only and does not constitute legal advice. Estate administration can be complex, and legal advice should be sought from an experienced wills and estates lawyer before taking any action.
If you or someone you know wants more information or needs help or advice, please contact us on 07 5576 9999 or email [email protected].
