Sorting out an estate

Take your time. Nothing in an estate has to be finished this week. This guide is general information about how estates are usually sorted out in Queensland.

What this usually means

An estate is everything a person owned when they died, less what they owed. Someone has to collect it, pay what is owed, and pass on the rest.

If there is a will, the executor named in it does this. If there is no will, a person called an administrator does the same job. The Public Trustee says an administrator has the same duties as an executor.

Many estates need a grant from the Supreme Court of Queensland. A grant is a court order that says who is allowed to deal with the estate. There are three main kinds:

• Probate. There is a valid will, and the executor named in it is applying.
• Letters of administration with the will. There is a valid will, but someone other than the named executor is applying.
• Letters of administration on intestacy. There is no valid will. "Intestacy" is the legal word for dying without one.

You do not always need a grant. The Public Trustee says you may not need one if an asset is small, such as a bank account with not much in it. You also do not need one for an asset held in joint names, because it already belongs to the surviving owner. Each bank and organisation has its own rules, so ask them what they need.

If you are named as executor, or you are next of kin where there is no will, you are under no legal obligation to take the job on. The Public Trustee says it is fine to hand over all of it, or only the complicated parts, to a lawyer or to them.

What you can do now

1. Get the death certificate and the will. The funeral director usually registers the death. Find the original will if there is one. See "Understanding a will".
2. List what the person owned and owed. Include bank accounts, super, property, vehicles, debts and bills. Note which things were in joint names.
3. Ask each bank or organisation what it needs. Some will release small amounts without a grant. Others will not.
4. Decide if you need help. The Public Trustee can administer the whole estate, or help with parts such as applying for probate, transferring property and tax. Phone 1300 360 044 to ask about costs. A solicitor can do the same.
5. If a grant is needed, apply to the Supreme Court of Queensland. The rules are in Chapter 15 of the Uniform Civil Procedure Rules 1999. There is a court filing fee, and there are other costs such as advertising. Check the current amounts with the court.
6. Do not give out the estate early. Wait until the executor or administrator has legal authority, the debts are known, and enough time has passed for anyone with a claim to come forward.

When there is no will

When there is no valid will, the Succession Act 1981 (Qld) says who inherits. In broad terms:

• If there is a spouse and no children, the spouse usually receives the whole estate.
• If there is a spouse and children, the spouse usually receives the first $150,000 and the household items, plus a share of what is left: half if there is one child, and a third if there is more than one. The children share the balance.
• If there is no spouse, the children usually receive everything.
• If there is no spouse or children, the parents usually do. After that, other relatives.

To inherit as next of kin, a person usually has to be alive 30 days after the death. If there is no will and no relative, the property can go to the Crown. These are general outlines only. How they apply depends on who survived, and a lawyer or the Public Trustee can work it out.

Time limits

There is no fixed deadline to apply for a grant. But there are timing points to know:

• A person who was left out, or who thinks they were not properly provided for, usually has nine months from the death to start a family provision claim. See "I was left out of a will".
• Under section 44 of the Succession Act, an executor is protected if they distribute the estate properly six months or more after the death and have no notice of a claim. If notice of a claim has been received, the protection usually starts nine months after the death, unless the executor is told that a court application has begun.

For both reasons, many executors wait before paying out beneficiaries.

If it goes further

If people disagree about a will, who should be the administrator, or what they are owed, the Supreme Court of Queensland can decide. This can be slow and costly. The Public Trustee notes that some estates run longer because of disputes, selling property or tracing beneficiaries. Most estates take about 12 months in all.

Questions to ask whoever helps you

• Does this estate need a grant, or can the main assets be dealt with without one?
• If there is no will, who is entitled to inherit and who is entitled to apply to administer?
• What will it cost to have you do all of it, or only part of it?
• How long should I wait before paying beneficiaries?
• Am I personally at risk if I make a mistake as executor or administrator?