Estate Planning is our speciality. Prior to passing, we have prepared wills and trusts for clients to meet their testamentary intentions. However, what happens after the passing of a person?
The death of a family member or a friend is always a difficult time. However, once the stages of grief have passed, the subsequent question is usually ‘well what about all their stuff?’ When a person passes away, put simply, there are two alternatives. One, they have organised a Will to be prepared or executed, or two, they do not have a Will have died intestate.
Probate
When a person passes with a Will, the executor named in the Will is usually the person to apply for a Grant of Probate. A Grant of Probate is an Order issued by the Supreme Court. A Probate QLD Application is an application made to the Supreme Court of Queensland to seek that the deceased’s last Will be validated. If you are appointed as an executor by a person who has died leaving a will, you are the person with first priority to apply for a grant of probate.
The process, in its most basic form, is usually as follows:
1. Advertising a Notice of Intention to Apply for a Grant, and supplying the notice to the Public Trustee;
2. Publication in the Queensland Law Reporter;
3. Application in the Supreme Court;
The above process usually takes 6-8 weeks from filing, and sometimes longer, depending on number of applications being processed by the Supreme Court of Queensland at the time of filing. Once Probate is granted over a deceased Will, the Estate can be administered.
Letters of Administration
When a person passes without a valid will, and thus intestate, the process of obtaining a grant of letters of administration is necessary. Said process is also necessary where there is a Will but the Executor appointed in the Will cannot act and no one else is mentioned in the Will as the backup Executor.
An order of priority for applicants whom seek to be granted letters of administration is set out in the Uniform Civil Procedure Rules 1999, and the initial three are as follows:
• surviving spouse (including a de facto partner)
• children
• grandchildren or great grandchildren
Once an administrator is appointed, and if no will exists, the estate is distributed as per the laws of intestacy. The laws of intestacy may greatly differ from the wishes of the deceased. The Queensland Public Trustee provides a useful diagram as presented below.
Further, the legal and administrative costs of filing for letters of administration are usually greater than that of mere grant of probate. Thus, preparing a Will is an essential estate planning measure.
Conclusion
Death, estate planning and estate matters may well be disheartening topics of conversation. However, if you plan your estate effectively and efficiently, you may well be saving your family financial and emotional costs.
This information is general in nature and is not intended to be legal advice. Please contact the writer for further information.