If you need help with a Queensland contested estate or estate administration, we are here for you.
Call us today or click here to book, your complimentary 15-minute conversation about your options and how we can help you.
Call us on (07) 3371 0795
Email us at email@example.com or use the contact form below.
Schedule a complimentary 15 minute call click here.
Our Postal Address – GPO Box 2918, Brisbane Qld 4000
Level 7, 320 Adelaide Street, Brisbane Qld 4000
If you find it hard to get to us in the city, we will come to your home or business. We also offer Zoom meetings for those who prefer to “meet” by video link.
Resolve Estate Law
Getting to Us
Wilson Parking, 340 Adelaide Street, Brisbane
Secure Parking, 363 Adelaide Street, Brisbane
Kings Parking, Cathedral Square, 410 Ann Street, Brisbane
Care Park Australia, 344 Queen Street, Brisbane
By Train: Alight at Central Station, head along Ann Street towards Wharf Street. Head down Wharf Street towards Adelaide Street.
By Bus: Catch any bus to stop 29, 33, 156, 157, 158 or 162 and head along Adelaide Street towards Wharf Street.
Our building is on the corner of Adelaide and Wharf Streets.
How much do your services cost? And how long will it take?
Applications for a Grant of Probate or Letters of Administration
If you need help with making an application for probate or letters of administration, we offer a range of fixed price options for you. From a simplified grant process for straight forward applications involving simple estates, right through to more complex grant applications we will give you a fixed price so that you have certainty on the costs before going ahead.
It usually takes around 2-3 months to obtain a grant. This is because, it can take time to search for and locate any will and it often takes a few weeks to get the death certificate. Before the court application can be made advertising must be done of the intended application. The application and the supporting affidavits can only be filed 14 days after the advertising has been completed. It can then take the court registry 4 – 8 weeks to issue the grant.
If you want to handle the estate administration steps yourself after the grant issues from the court, you can do that without our further involvement, or we can provide touchpoint advice to you on specific issues as they arise. Alternately we provide a full estate administration service, so that you don’t have the burden of managing all of the paperwork.
When acting for executors or administrators we generally recommend that our costs for estate administration are independently assessed on the Supreme Court Scale (the court scale accepted as the applicable court scale for estate matters). This way, the legal costs that are incurred are being assessed by an independent costs assessor based on the steps taken in the matter (rather than how long each step takes). Often (though not always) the costs of the personal representatives are paid from the estate. Having costs independently assessed this way can eliminate arguments with the estate beneficiaries over whether or not those costs are reasonable. For simple estate administrations we can fix the costs to attend to the necessary tasks so that costs are capped.
If you wish to try resolving any estate dispute using a collaborative process, we will discuss with you our estimate of how many meetings might be needed to resolve your dispute and we will then provide a fixed fee scope for each meeting in a staged way, so that you know in advance of each meeting what the costs will be.
If you wish to engage Zinta Harris to act as mediator to try to reach resolution of your estate dispute, our full day and half day mediation rates are as set out in our Mediation kit.
If your estate dispute is not suitable for collaboration or mediation then we generally recommend to our clients (whether they are beneficiaries or the personal representatives) that our costs be independently assessed on the Supreme Court Scale (the court scale accepted as the applicable court scale for disputed estate matters). This way, the legal costs that are incurred are being assessed by an independent costs assessor based on the steps taken in the matter (rather than how long each step takes). Often (though not always) the costs of the personal representatives and those of the parties making a claim against the estate are paid from the estate. Having costs assessed this on the Supreme Court Scale can eliminate arguments over whether or not those costs are reasonable so that agreements about costs (and whether or not they ought to be paid from the estate) can be reached more easily.
Who takes responsibility for the estate administration?
If there is no will (or informal will) naming an executor, then the people who are entitled to apply for administration (largely next of kin who are named in a list ranked in priority) can apply for a grant (called letters of administration).
If there is a valid will, the named executor/s are usually responsible for administering the estate, unless they chose to renounce that role – in which case the next named executor can take on the role. If there is no alternate executor, then the people who are entitled to apply for administration can apply to be appointed.
If there are no next of kin or others entitled to apply, or if they are unwilling to take on the role, an independent administrator can be appointed. This type of appointment is usually done with the consent of all of those who will take a benefit under the intestacy provisions of the Qld Succession Act, but can also be appointed by a court if agreement can’t be reached.
For more information on who takes responsibility click here to read our more detailed blog article and for more information on what is involved in the role of executor or administrator click here to download our free e-book “I’m an Executor – now what?”
Am I entitled to a copy of the will?
In Queensland s33Z of the Succession Act sets out who is entitled to a copy of the will (the current will and prior wills made). If you are either one of the persons listed below you will be entitled to copy of the will and a copy of any prior wills:
- A person mentioned in the will (or earlier will), whether as a beneficiary or not whether named or not;
- A spouse, parent or “issue” (child, grandchild and so on) of the deceased;
- A person entitled to a share of the estate on intestacy (where there is no will);
- A parent or guardian of any ‘entitled person’ (in this list) if that person is a child under 18;
- A creditor or other person who has a claim against the estate; or
- Any other person who could apply for further provision from the estate.
You can write to the executor or administrator (or their solicitor) and ask for a certified copy of the will and prior wills under this section. If you want certified copies you will usually be required to pay the costs of having those documents prepared for you. In practice, often scanned (not certified) copies of these documents are provided electronically at no cost.
What if there isn’t a will?
If you can’t find a formal will, it might be necessary to search for other documents or electronic files or recordings that might contain testamentary wishes (which might then be recognised as an informal will).
For more information on where to look for a will, or what an informal will might look like click here to download our free e-book “I can’t find the will – now what?”
If you can’t find a will or an informal will, and there is not other evidence of any testamentary wishes, then the estate will be administered in accordance with the Intestacy provisions of the Qld Succession Act. There are different formulas that apply depending on whether or not there is a surviving spouse (or more than one e.g. because the deceased may have been separated but not divorced and in a de facto relationship) and whether or not there are surviving children.
If these provisions are not appropriate, beneficiaries who can demonstrate that they ought to receive better provision from the estate, can apply to make a claim for further provision against the intestate estate.
Unless the estate is very small, someone will need to take responsibility for administering the estate. There is a list of people (largely next of kin who are named in a list ranked in priority) who are entitled to apply for a grant called “letters of administration on intestacy”.
If there are no next of kin or others entitled to apply, or if they are unwilling to take on the role (or unable to because they intend to make a claim against the estate), an independent administrator can be appointed. This type of appointment is usually done with the consent of all of those who will take a benefit under the intestacy provisions of the Qld Succession Act, but can also be appointed by a court if agreement can’t be reached.
I have been left out of a will, what can I do?
The first thing to do, is not panic. Instead give us a call or book in to see us, so that we can talk through your options. It is important to do that in a timely way because if you are able to demonstrate an entitlement to provision from the estate a notice of your intention to make such a claim, must be given to the executors or the administrators within 6 months from the date of death (and then an application must be filed within 9 months from the date of death). If this is not done and the estate is distributed after 6 months, then you will have lost your opportunity to make a claim.
There may also be another way to challenge the will. If the deceased made their last will in circumstances that raise suspicion about their capacities, or indicate that they were unduly influenced to make their will in a certain way, then it might be possible to challenge the validity of the will for lack of testamentary capacity and undue influence. Before taking this path, it is important to consider the terms of any earlier will (i.e. to be sure provision under that will improves your position) and to consider the costs of what might then become a solemn form “trial” so that a court can decide on the validity of the will.
If you want to try and resolve your claim/s without going to court, it is important to approach this in a calm and measured way so that you don’t set down a costly pathway needlessly.
Someone is challenging the will – what do I do?
If you are the executor or administrator and you receive notice that someone intends to make a claim against the estate, or someone is challenging the validity of the will, you need to get expert legal advice.
While it is your duty to uphold the terms of the will, or to administer in accordance with the intestacy provisions, if you receive notice of a claim for further provision from the estate, it is prudent to give the claim proper consideration, and if legitimate, to take steps to attempt to reach an acceptable settlement as cost efficiently as possible.
If someone is challenging the validity of the will, you will need expert help to gather in the necessary evidence to work out whether or not the challenge might succeed. It may be necessary to make what is called a “solemn form” application to the court to have a judge decide on the validity of the will.
We can help you navigate both types of challenges to the estate.
The executors are not doing the right thing – what can I do?
If you are a beneficiary of the estate and feel that the executors or administrators are not acting properly, they are not keeping you informed on the progress of the administration, or are breaching their roles and responsibilities, you may wish to consider making an application to seek their removal in favour of an independent administrator.
Before taking that action we always recommend making attempts to open communications with the personal representatives to try to resolve the issues without going to court. This might involve requesting a report on where things are at and asking to inspect the informal estate accounts or requesting a formal estate accounting.
We can help you with these negotiations and any court application if that becomes necessary.
I can’t agree with my co-executors – what should we do?
If you have been appointed jointly with other executors you are required to act jointly and make unanimous decisions. If all of you can’t agree, this can cause difficulty in the estate administration.
For that reason, it is important to consider whether or not you will be able to work with the appointed executors before taking on the role. One or more of the named executors can renounce their role before being appointed, so if you don’t want to be executor you can easily renounce your appointment.
If you have already commenced acting as co-executor, when disagreements arise, leave of the court will be needed for any one of the executors to renounce their position. If neither of the executors wish to relinquish their role, it might be wise to consider whether or not an independent administrator should be appointed. Alternately a mediation with an independent expert mediator might help resolve any deadlock.
Is there a time frame within which an estate must be distributed?
There is no set time frame within which an estate must be administered and distributed; however, it must be done without unnecessary delay and in a timely way.
Because in Queensland, notices of claims can be made against the estate within 6 months of the date of death, an estate should not be distributed until that 6-month period has passed.
There are however, timeframes to consider in an estate administration. For example after 1 year, interest will start being payable on any specifically bequeathed sums of money, the Capital Gains Tax exemption for the sale of the deceased’s principal place of residence will generally not be available on any sale after 2 years from the date of death, and after 3 years the estate’s income will no longer be taxed on individual tax rates, but on the higher provisional tax rates.
Executors and administrators can be personally liable for costs incurred unnecessarily because of their delay, so it is important to ensure an estate is administered as efficiently as possible. Of course, that is not always possible if challenges are made to the will or claims are made against the estate, particularly if those matters take a litigation pathway which can delay distributions from the estate for years. This is another reason why we always encourage parties to consider out of court resolution pathways, so everyone is free to move forward with their life as quickly as possible.
Do executors or administrators get paid?
The role of taking on the administration of the estate is an onerous one. It is fraught with personal liability and can mean that executors and administrators are required to pay estate expenses out of their own pockets at least until the estate assets are called in. It takes a lot of time to deal with various institutions to notify them of someone’s death, to identify and then call in all of the estate assets and to pay out the debts and liabilities of the estate. Much of these tasks are ones that have to be done during business hours, which means that executors and administrators sometimes have to take time off work or make other arrangements to fulfil their responsibilities.
The law recognises this and allows executors to claim what is called “commission” for “their pains and trouble”. If solicitors have been engaged to assist in the estate administration, the claim for commission will be less than if the personal representatives had done all of the work themselves. This is because they will not spend as much time doing things personally, but also because the legal costs of the administration will generally be paid out of the estate.
Sometimes the will terms will set what remuneration or commission should be payable to the executors. Often if they are professionals (like lawyers or accountants etc) it will allow remuneration in line with their usual professional rates. Sometimes a lump sum or an hourly rate is specified, sometimes an asset is gifted with the expectation that such gift will be in lieu of “commission”. Sometimes rates of commission are set as a % of the gross value of the estate and/or as a % on income earned while the administration continues.
If nothing is set out in the will, or if there is no will – it will still be possible for the executor/s to make a claim for commission. To save costs to the estate, it is often the case that executors will first approach all of the residuary beneficiaries (those that will take what remains after the specific gifts – if any are paid) – for their agreement on that commission. If agreement can’t be reached then the personal representatives are entitled to make an application to the court for an order that the estate pay them commission. Usually (if the personal representatives are behaving reasonably) the costs of that application will be payable by the residuary estate. For that reason, it makes sense to reach agreement between executors and beneficiaries on how much the executors ought to be paid.
Does a will cover what will happen to superannuation?
Generally, superannuation death benefits do NOT form part of the estate assets UNLESS they are directed to be paid to the personal representative/s of the estate in a binding way.
Clauses in a will directing that superannuation should be paid into the estate and then distributed to selected beneficiaries are not binding on a superannuation fund trustee.
If a valid binding death benefit nomination has been made by the deceased (in accordance with the superannuation trust deed specific to that superannuation and in accordance with the rules under the Superannuation Legislation) the trustee is bound to pay the superannuation proceeds in accordance with that binding nomination. So, unless all or part of the death benefits are directed to the estate, they will not be covered by any will terms.
If there is no binding death benefit nomination (or if the nomination is invalid because it wasn’t made strictly in accordance with the rules, or it had lapsed), then the trustee of the superannuation fund will have a discretion to decide how to pay those benefits to the entitled beneficiaries under the Superannuation Legislation (even if beneficiaries have been nominated in a non-binding way). Eligible beneficiaries for superannuation are spouses, children, other financial dependents, those in an interdependent relationship (e.g. brothers and sisters or parents and adult children living together and supporting each other) and the personal representatives of the estate.
The trustee may have to decide whether or not a certain relationship existed (e.g. if there is a de facto spouse or a person claiming to be financially dependent) and may need to decide on how to pay the monies if there are competing claims.