When someone dies, there are a number of legal and practical steps that may need to be taken before their estate can be distributed.
If you have been appointed as an executor, you are responsible for administering the estate in accordance with the Will and your legal obligations. This can include identifying and protecting estate assets, dealing with debts and liabilities, obtaining probate where required, and ultimately distributing the estate to the beneficiaries.
If there is no Will, or the person named as executor is unable to act, a different process may be required to appoint someone to administer the estate.
Estate administration can be straightforward in some estates and more involved in others. The steps required will depend on the Will, the assets and liabilities of the estate, and the circumstances of the people involved.
What is involved in administering an estate?
Administering an estate involves identifying what the deceased person owned and owed, dealing with those assets and liabilities, and ultimately distributing the estate to the beneficiaries.
Depending on the estate, this may involve locating the original Will, identifying and protecting assets, notifying banks and other relevant organisations, obtaining valuations, applying for Probate or Letters of Administration where required, collecting, selling or transferring assets, paying debts and other liabilities, attending to taxation matters and distributing the estate.
Some estates are relatively straightforward. Others may involve property, businesses or trusts, difficult to locate assets or beneficiaries, taxation issues or claims or disputes that need to be resolved before the administration can be completed.
Questions about Administering an Estate
I have been named as an executor. What do I need to do?
If you have been named as an executor in a Will, your role is to administer the deceased person’s estate in accordance with the Will and your legal obligations.
This can involve identifying and protecting estate assets, determining what the estate owes, applying for Probate if it is required, collecting or transferring assets, paying debts and other liabilities, attending to taxation matters and distributing the estate to the beneficiaries.
You do not need to do everything immediately. Before dealing with or distributing estate assets, it is important to understand what is in the estate, what steps are required and whether there are any issues that need to be addressed.
Being an executor also does not mean that you need to manage every aspect of the administration yourself. You can obtain assistance with the whole administration or with particular steps where you need help.
What should I do first after someone has died?
One of the first steps is to locate the deceased person’s original Will and confirm who has been appointed as executor. If a Will cannot immediately be found, appropriate enquiries should be made before assuming that the deceased did not make one.
It is also important to identify any immediate matters requiring attention, such as securing the deceased person’s home, vehicles and other valuable assets and checking that appropriate insurance remains in place.
The executor can then begin identifying the deceased person’s assets and liabilities. This may include bank accounts, property, investments, superannuation, insurance, business or trust interests, loans and other debts.
You do not need to have every document or know the value of every asset before seeking advice. We can help you work out what needs attention, what information will be required and what the next steps should be.
Do I need probate?
Not every estate requires Probate. Whether Probate is needed will depend on the assets in the estate, how those assets are owned and the requirements of the organisations holding or dealing with them.
A Grant of Probate is issued by the Supreme Court of Queensland. It formally recognises the Will and confirms the executor’s authority to administer the estate.
A bank, financial institution or other organisation may require Probate before releasing or transferring an asset. A Grant may also be required when dealing with real property held solely in the deceased person’s name.
In other estates, assets may be able to be dealt with without Probate. For example, jointly owned assets may pass to the surviving joint owner without forming part of the estate administration in the same way.
Before applying for Probate, it is worth identifying the assets, how they are owned and whether a Grant is actually required.
What happens if there is no Will?
If someone dies without a valid Will, they are said to have died intestate. This does not mean their estate automatically passes to the government. Instead, Queensland’s intestacy laws determine who is entitled to receive the estate.
As there is no executor appointed by a Will, an eligible person may need to apply to the Supreme Court of Queensland for authority to administer the estate. The person appointed is called the administrator and performs a role similar to an executor.
Who is entitled to administer and receive the estate will depend on the deceased person’s family circumstances.
If a Will cannot be located, enquiries should be made to determine whether one exists before proceeding on the basis that the deceased died intestate.
What are Letters of Administration?
Letters of Administration are a type of Grant issued by the Supreme Court of Queensland giving a person authority to administer an estate where a Grant of Probate is not available or appropriate.
They are commonly required where a person has died without a valid Will. They may also be required where there is a valid Will but the executor named in it is unable or unwilling to act. In those circumstances, an application may be made for Letters of Administration with the Will.
Both Probate and Letters of Administration provide authority to administer an estate. The appropriate application will depend on whether there is a valid Will, who is available and entitled to administer the estate, and the circumstances of the estate.
Not every estate requires a Court Grant, so it is important to determine what is required before making an application.
How long does it take to administer an estate?
There is no set timeframe for administering an estate. How long it takes will depend on the assets and liabilities involved, whether Probate or Letters of Administration is required, and whether any issues arise during the administration.
Some estates are relatively straightforward, while others may take longer because property or other assets need to be sold, taxation matters need to be finalised, beneficiaries need to be located, or a claim or dispute needs to be resolved.
Obtaining Probate does not mean that the estate is immediately ready to be distributed. The executor still needs to ensure that the assets and liabilities have been properly dealt with and that it is appropriate to make distributions to the beneficiaries.
In some circumstances, an interim distribution may be possible before every aspect of the estate has been finalised, provided sufficient assets are retained to meet the estate’s remaining liabilities and other requirements.
When can an estate be distributed to beneficiaries?
Before distributing an estate, the executor needs to be satisfied that the estate is in a position to be distributed. This includes dealing with debts and expenses, considering taxation matters and allowing for any claims that may affect the estate.
In Queensland, particular time limits apply to family provision applications. A person intending to make a claim generally needs to give notice to the executor within six months of the date of death and commence their application within nine months of the date of death.
This does not necessarily mean that an executor must wait nine months before making any distribution. Whether an interim or final distribution can safely be made will depend on the circumstances of the particular estate, including whether there are any known or potential claims and whether sufficient assets are retained to meet outstanding liabilities.
Distributing an estate too early can create difficulties for an executor if a debt, liability or claim later arises. It is therefore important to consider whether the estate can safely be distributed before doing so.
Can an executor be personally liable?
An executor has legal responsibilities when administering an estate and, in some circumstances, can be personally liable if those responsibilities are not properly carried out.
This does not mean that an executor becomes personally responsible for the deceased person’s debts simply because they have accepted the role. Personal liability can arise from the way an executor administers the estate.
For example, problems may arise if estate assets are not properly protected, assets are distributed to the wrong person, debts or taxation liabilities are not appropriately dealt with, or the estate is distributed when it should not have been.
Executors should also keep appropriate records of assets and money received, expenses and liabilities paid, transactions undertaken and distributions made.
Being an executor does not mean you are expected to know how to deal with every legal, financial or taxation issue yourself. Obtaining advice where needed can help you understand your responsibilities and make informed decisions as the administration progresses.
How we can help
Administering an estate involves a number of legal and practical responsibilities, and the steps required will depend on the estate.
We can guide you through the administration from beginning to end or assist with particular steps along the way. This may include reviewing the Will and advising you about your role, obtaining Probate or Letters of Administration, dealing with estate assets and liabilities, assisting with the sale or transfer of property, communicating with beneficiaries and preparing for the distribution of the estate.
If an issue or complication arises during the administration, we can also help you understand what it means for the estate and what needs to happen next.
Are you an executor or dealing with the estate of someone who has died?
Are you an executor or dealing with the estate of someone who has died?
If you are concerned about a Will, an executor, the administration of an estate or how an estate is being distributed, learn more about Estate Disputes