Wills & Estate Lawyers Logan & Brisbane Southside

The word probate means official proof that a will is the deceased’s last will and that it is valid. The significance of a grant of probate is that anyone needing to deal with the deceased’s estate can be confident the executor has been validly appointed and is authorised to act on behalf of the estate.

It is often the case that banks, superannuation funds, and aged care facilities will not deal with an executor without a grant of probate.

If the will is complete and it is validly signed and witnessed, and if no dispute exists regarding the deceased’s capacity to make the will, and if there is no dispute or suggestion that the will has been corrupted by a third party’s undue influence or an abuse of power, then the will can be admitted to probate in common form.

If any of the above doubts exists surrounding the will the probate must be granted in solemn form.

Probate in common form is designed to be a streamlined process but, as you may expect, it is a very exacting process. Many find it quicker and easier to have a solicitor prepare the documents and attend to lodgement for them. At Madsen Law we have solicitors experienced in obtaining grants of probate.

For advice about your situation, call (07) 3209 7744 or request a call above.

If a person dies without having made a valid will they are said to die “intestate”. The problem in this situation is that upon a person’s death (let’s say for example John Citizen’s death) a legal entity comes to life called, in this case “the estate of the late John Citizen” and without a will appointing the executor this creature has, so to say, no “brains” or “hands” to think and act.

In this situation an application must be made to the supreme court for the appointment of an Administrator. Rule 610(1) of the Uniform Civil Procedure Rules prescribes in descending order to whom the Supreme Court may grant letters of administration on intestacy. This means the Court will grant letters of administration to any person who appears in priority to any other person, in this order:

1. The deceased’s surviving spouse.
2. The deceased’s children.
3. The deceased’s grandchildren or great-grandchildren.
4. The deceased’s parent or parents.
5. The deceased’s brothers and sisters.
6. The children of the deceased’s brothers and sisters.
7. The deceased’s grandparent or grandparents
8. The deceased’s uncles and aunts.
9. The deceased’s first cousins.
10. Anyone else the Court may appoint.

Some Additional Considerations:

1. A child under 18 will need to be represented by a legal guardian to obtain a grant of letters of administration.
2. Sometimes no-one is available or willing to act and the only person available comes from item 10 “anyone else”. In that situation it is necessary to go through the list of persons with priority and explain why they can’t or won’t apply for letters of administration.
3. Sometimes where there is a high level of family disharmony or complicated family relationships the Court will instead appoint the Public Trustee.
4. An applicant need not establish priority to a person equal or lower than them in the priority list.
5. If there are two or more surviving spouses the Court may grant to one or more of them or to someone lower in the priority list

More often than not there is not any significant dispute as to who should apply for Letters of Administration and the process is quite straight forward with no requirement for any personal attendance at court to secure the granting of Letters of Administration. There are a number of stages to the process including advertising, many people find it quicker and easier to have a solicitor prepare the documents and attend to obtaining the Letters of Administration for them. We have experienced estate lawyers who are able to obtain Letters of Administration.

Obtaining the grant of probate or letters of administration usually takes about 6 weeks. Gathering in assets may commence once that grant has been obtained. Anecdotally the larger the organisation the longer it takes to get information and assets from them. The ATO being notoriously slow, followed next by large superannuation funds. Some find the unhelpful or inane questions or demands for information intolerable at this time of loss and prefer engaging a solicitor to deal with these organisations.

Typically, the obtaining of the grant of probate and the gathering in and distribution of assets will take about 6 months. More time may be needed where beneficiaries cannot be located or are uncooperative or final tax returns need lodging, properties need selling, or family members won’t stop squabbling. Many find these additional stresses are best left in the hands of an experience’s estate solicitor to sort it out.

For advice about your situation, call (07) 3209 7744 or request a call above.

At the time a person dies a legal creature comes alive. That living legal creature is the estate of the deceased person. The assets of the estate are held on trust for the beneficiaries named in the will or if no will exists as provided in the intestacy rules.

The cost of administration of the estate (getting those assets into the hands of the beneficiaries) is a liability of the estate. They are not the responsibility of the executor or the administrator but, and this is important, if a dispute arises about the administration about the estate or about who ought to get more and who ought to get less, then different considerations apply.

The general rule is that the estate pay these legal costs, but the court retains a discretion as to who should pay and how much.

The Court’s discretion to depart from the general rule about costs is usually enlivened by bad or unreasonable behaviour, of which there are too many kinds to try to encapsulate in a list here.

For advice about your situation, call (07) 3209 7744 or request a call above.

The answer is yes, but only if:

1. You are an eligible person (a spouse, child or dependant); and
2. Your application is commenced before the limitation period expires (i.e. 9 months from the date of death).

It is wrong to think that an application can be made simply because you have been left out or because you received less than your siblings. The question for the Court is whether or not adequate provision for you proper maintenance and support was made under the terms of the will. Assessing your prospects of success is a task requiring the skill and judgement of an experiences estates lawyer.

For advice about your situation, call (07) 3209 7744 or request a call above.

For advice about your situation, call (07) 3209 7744 or request a call above.