“Plan ahead and protect your family with a legally prepared Estate Plan”
Estate Planning and Administration Lawyers Gold Coast and Brisbane Wide
Attwood Marshall’s team of experienced lawyers are highly specialised in the complex areas of estate planning and probate. Servicing the Gold Coast, Brisbane and northern New South Wales, we are here to help you plan for the future and ensure your family and estate are protected.
What we specialise in:
Specialising in both Queensland and New South Wales in this complicated area of law, we have the state-specific knowledge and expertise to assist you with all aspects of deceased estate administration. 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, obtaining probate and particularly with respect to enduring powers of attorney. Many deceased estates have assets that straddle both jurisdictions 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.
What is Probate?
Probate is the process of approving and authenticating a Will in the Supreme Court. When a person dies, the executor of their Will calls in the assets of the estate and distributes the proceeds to the beneficiaries. In most cases, to get authority to do this, they will first need to get a Grant of Probate from the Court.
The processes for obtaining probate vary slightly in Queensland and New South Wales jurisdictions, and our solicitors always adhere to the necessary legal requirements in your state.
The following information is specific to the Supreme Court probate application process and Grant of Probate in Queensland, but if you would like more information about the specifics to New South Wales, please get in touch.
Obtaining Probate of a Will
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 executor 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 notify the Public Trust Office.
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, then issues a probate document bearing the seal of the Supreme Court, which is sent to the solicitors acting for the executor.
Obtaining Letters of Administration
Letters of administration are required instead of a Grant of Probate 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 sections 35 – 37 of the Succession Act 1981 (QLD), and New South Wales by Chapter 4 of the Succession Act 2006 (NSW), which 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 the 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 to people who have de facto spouses, stepchildren and other differing circumstances, but basically, this is the order of inheritance in the event that people do not have a Will when they die.
There are various issues which flow from not having a Will, which can severely impact upon your family or relatives. This is why it is very important that everyone has a Will prepared before they die, 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 Grant of Probate is sent to all relevant banks, financial institutions and government departments, and assets are either transferred over to the executor 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.
How Long Does Probate Take?
The application and granting probate process takes approximately 8-12 weeks from the date of death. Court processing times for non-complex probate applications can be up to 25 working days, while complex applications may take longer.
Looking for legal advice regarding deceased estate administration? Contact us now for your free legal advice.