If you die without a Will, someone will be required to act as an administrator. To do this, they will need to obtain a Grant of Letters of Administration from the Court to be the administrator of your estate. If no one is willing or able to act as your executor, the Public Trustee may do so.
There are rules in place to determine how your estate will be distributed if you do not have a Will. These are known as the ‘Rules of Intestacy’. For example, in QLD:
- If you have a surviving spouse but no children, the entire estate will go to your spouse
- If you do not have a spouse, but are survived by children, the estate will be divided equally between your children
- If you are survived by a spouse and children, your spouse receives the first $150,000, the household chattels, and a share of the remaining estate. Your children then receive shares of the remaining estate with the spouse
What are the duties of an executor?
An executor’s primary responsibility is to gather the assets of the deceased estate and to pay any debts of the deceased. The executor then distributes the remaining assets to beneficiaries in accordance with the Will.
Depending on the nature of the estate, an executor’s responsibilities may include:
- Organising a funeral
- Identifying the deceased’s assets and liabilities
- Organising proper insurance cover for the deceased’s property
- Closing bank accounts
- Applying to the Court for a Grant of Probate which proves the validity of the Will and allows the executor to manage the assets of the estate
- Selling or transferring the deceased’s house and other property
- Paying any creditors
- Liaising with beneficiaries
- Distributing money and items to beneficiaries
- Taking care of any taxation issues
- Looking after assets or investments that have been left to anyone under 18 or with a legal disability
- Representing the estate in any litigation (e.g. a contesting the Will) claim
Grant of Probate
If you’re named as the executor of a Will, you may need to apply for a Grant of Probate. This is the court’s official recognition that the Will is legally valid, and you’re authorised to deal with the estate. It will also provide you with some protection from liability and ensure you are acting on the last Will. If there is no executor appointed, or the executor is not able or willing to act, another willing person may apply to the Court for a Grant of Letters of Administration. This person could be, for example, a spouse, de facto spouse, child or next-of-kin. A Grant of Letters of Administration essentially gives you the same powers as a Grant of Probate.
The following information relates to Queensland only. The Queensland Civil and Administrative Tribunal (QCAT) is an independent body that assists Queenslanders in resolving disputes across a range of issues. One of these is in appointing someone to assist a person who has lost capacity and is unable to make decisions for themselves.
How Shine can help
Shine Lawyers are experts in Wills and Estate Law who can help you administer an estate. The laws surrounding Estate Administration can be complex, and vary from state to state, so a lawyer with extensive experience in this area of the law can assist an executor to carry out their duties. To find out more contact us today.