Deceased Estates Brisbane
An Executor of an estate has many duties to perform, one of which may include obtaining Probate of the deceased’s last Will. Probate of a Will is the Supreme Court’s acceptance of the Will and the appointment of the Executor named in the Will to carry out the administration of the estate.
Reasons to obtain Probate
Banks will require the Executor to produce a certified copy of the Grant of Probate of the last Will depending on the amount of moneys held in the deceased’s bank accounts. If the deceased had paid a Refundable Accommodation Deposit to an aged care home then that home will also require the Executor to produce a certified copy of the Grant of Probate in order to release the Refundable Accommodation Deposit. Similarly, Probate may be required to sell a large share portfolio held by the deceased.
Before the Court grants Probate it must be satisfied that the Will is the last Will, has been duly signed and witnessed, that there are no marks or changes to the Will and that the capacity of the Will-maker was not affected at the time the Will was signed.
Before the application for a Grant of Probate is filed, the Executor must advertise a Notice of intention to apply for Probate. The Probate Notice requires persons who may intend to challenge the Will or who are owed money by the Will-maker to notify the Executor of their claims. That Notice is called a Caveat. Generally, the Law allows persons 6 months from the date of the Will-maker’s death to notify of their claims upon the estate.
Disputes about Validity of the Will
If someone files a Caveat with the Court then Probate of the Will will not be granted until the person who filed the Caveat has been heard in Court. That person may be able to prove in Court that the Will is not the true last Will as, for instance, there is evidence that the Will-maker was unduly influenced by a beneficiary or that the Will-maker was ill at the time of making the Will and did not give full consideration to the needs of all of the possible beneficiaries.
Family Provision Applications
Once Probate has been granted to the Executor there may still be a challenge to the Will by a spouse, de facto, child, step-child or financial dependent of the Will-maker who may have received a benefit from the Will but who claims that he or she is entitled to more from the estate. Such claims are called Family Provision Applications. Until the Family Provision Application is determined the estate assets are held by the Executor and none of the beneficiaries are paid or receive their share from the estate.
Our firm will, once Probate has been granted to the Executor, attend to the sale of the assets, the closure of bank accounts and the collection of the Refundable Accommodation Deposit and pay those funds to our trust account. Once the funds are in our trust account they may only be paid out on the written direction of the Executor.
Is Probate Required?
In some estates it is not necessary for the Executor to obtain a Grant of Probate. We will advise the Executor whether Probate is required depending on the circumstances of the Will-maker at the time of their death, the assets of the estate and how the assets were owned. If Probate is not required then the costs of the estate administration are reduced.
When is the Estate Administered?
Usually the estate will be finalised within 6 months and the beneficiaries given their share of the estate shortly thereafter. We advise our clients not to distribute the estate until 6 months after the date of death as to do so before 6 months has elapsed from the date of death may lead to the Executor being personally liable to a beneficiary or creditor who has a claim upon the estate.
Defending Claims against the Estate
More and more often claims are made against the estate by a beneficiary for a greater share of the estate, or in the case of a person left out of the estate, then that person may seek some or all of the estate. Persons who may claim against the estate may be a spouse, de facto, child, step-child or a financial dependant of the Will-maker. We are able to provide you with advice regarding the prospects of such a claim whether you are the Executor of the estate or the claimant.
Capacity of the Will-maker
As people live longer questions are raised about the capacity of the Will-maker to make their Will. The Court has decided what steps a solicitor must take to be satisfied that the Will-maker has the capacity to make the Will. Often it is our advice to obtain a medical letter from the Will-maker’s doctor which confirms the Will-maker does have the relevant capacity at the time the Will is signed.
If at a later date the Will-maker loses capacity the doctor’s letter will satisfy the Court that at the time the Will was made the Will-maker had the capacity to make their Will.
Dying without a Will – Letters of Administration
A person is said to die Intestate if they did not have a valid last Will. In such situations we can assist by preparing an Application on behalf of the deceased’s relative to the Supreme Court for Letters to Administer the estate. If Letters are granted by the Court to the deceased’s spouse or next–of–kin then that person has the authority to administer the estate as if they were an Executor appointed under a Will.
Sometimes the appointed Executor named in the Will dies before the Will-maker or the Executor becomes incapable of carrying out their duties as Executor. In that event a close relative may nominate for the position to administer the estate and the Court may grant Letters to Administer the estate to that relative.
Final Tax Return
Sometimes it may not be necessary for the Executor to lodge a final tax return on behalf of the deceased. We discuss with the Executor the circumstances when it would be prudent to lodge a final tax return, for instance, to collect unpaid interest, collect share dividends or where there may be a Capital Gains Tax question.
Throughout the years we have administered countless estates. One example was the case of Re Parker  2 Qd R 617 where the deceased had been lost at sea. As a result of the decision made by the Court in this case, changes were made regarding the issuing of Death Certificates, and in particular, causes of death. Without the Certificate of Death the widow would not have been able to administer her late husband’s estate including re-mortgaging the family home.
Peter Daley was the solicitor in the cases of Daley v Barton & Anor; Barton v Daley  QSC 322 which involved a claim by a son for a greater share from his father’s estate based upon a case that the father, whilst suffering from a brain tumour, did not have capacity to make his Will. Peter drew the relevant Will for the father and the Court found at trial that the father’s Will was valid.
As is often the case in estate matters funds are not always available in the first instance to meet the costs involved in the administration of an estate or to meet the advertising and Court fees. We then meet those expenses on behalf of the estate and we agree to render our account when the estate funds have been collected.