We often receive enquires from people asking if they are entitled to take control of a deceased’s estate when the deceased did not leave a Will.
When someone dies without a Will they are said to have died ‘intestate’ and the administration of your estate in Queensland will be governed by the rules of ‘intestacy’ under the Succession Act 1981 (Qld).
Who takes control of an estate if the deceased did not leave a Will?
The person who takes control and finalises a deceased’s person’s estate when they did not leave a Will is called an ‘administrator’.
When someone does not leave a Will, an administrator will not have authority to deal with a deceased’s estate until the Supreme Court of Queensland has granted them Letters of Administration on intestacy.
What is Letters of Administration on intestacy?
A grant of Letters of Administration on intestacy is obtained from the Supreme Court of Queensland. This is similar to an executor (who has been appointed via a Will) obtaining a ‘grant of probate’.
Before granting Letters of Administration on intestacy, the Court must be satisfied that the person applying can appropriately administer the estate.
Once the administrator has received a grant of Letters of Administration on intestacy, they will be entitled to call in and deal with the deceased’s assets, including closing bank accounts and receiving the funds and transferring any property to their name as personal representative of the estate.
Who can apply for Letters of Administration on intestacy?
The Uniform Civil Procedure Rules 1999 (Qld) sets out the priority of persons who can apply for a grant of Letters of Administration on intestacy.
The following (in descending order of priority) are the persons who the Court may make a grant of Letters of administration on intestacy to:
- spouse or de facto partner;
- children or stepchildren;
- grandchildren or great-grandchildren;
- parent or parents;
- brothers or sisters;
- children of deceased brothers and sisters of the deceased;
- grandparent or grandparents;
- uncles or aunts;
- first cousins.
The Court can make a grant to any person in priority to any other person mentioned above.
For example, a parent of the deceased will receive a grant in priority to the deceased’s brother or sister.
If there are no surviving family members from the categories listed above, then any other person may seek to apply to the Court to be appointed as administrator.
What if a person with higher priority has died, lost capacity or refuses to take on the role of administrator?
Each applicant must establish priority by proving that any person higher up in the list is not entitled either because of death, incapacity or renunciation (i.e., refusing the role).
Evidence will need to be provided as to the existence or non-existence of any of the persons who have priority to a grant over them.
If a brother of the deceased wished to make an application to be appointed as the administrator of the estate, he will have to confirm in his application that the deceased:
- did not leave a spouse or de facto partner;
- did not leave children or stepchildren; or
- provide evidence that the above persons are unable or unwilling to undertake this role. (this often involves obtaining death certificates, letters from doctors confirming lack of capacity, or obtaining signed renunciations).
What if there is more than one person in each category?
The applicant does not have to establish priority for a person equal or lower than them in the order of priority.
If there are two or more people with the same priority as outlined above, they may make the application together, to be jointly granted as administrators – or on a first in, first served basis.
Therefore, using the example above, if the brother of the deceased makes an application first (before any of his siblings), the grant of Letters of Administration on intestacy will be granted to him.
What is the process to apply for Letters of Administration on intestacy?
The first step is to identify the person with the highest priority to make the application.
Once the proposed administrator has been identified, a similar process to probate applications is undertaken, which involves the following:
- Advertising a notice of intention to apply for a grant in the Queensland Law Reporter and serving a copy of the notice of intention to apply on The Public Trustee of Queensland.
- Within this time, your application documents can be prepared. This will also include collecting any evidence as to the existence or non-existence of persons who have priority to a grant over you.
- Once finalised, the application can be filed in the Supreme Court of Queensland after 14 days has passed from the date when the notice of intention to apply was advertised.
- Once the grant is received, there is a second advertisement which is called a ‘creditor’s notice’ (to notify creditors of the estate) in the local newspaper – which need to be in place for a period of 6 weeks.
If you are uncertain about who should be appointed as administrator of a deceased estate, or the process in order to obtain a grant of Letters of Administration on intestacy, please feel free to contact us.
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