Practical, compassionate help to settle an estate – so you can focus on what matters.
Legal commitments are the last thing you want to deal with when you’re grieving the loss of someone you love.
When someone dies, the person responsible for their estate often has to prove their authority before a bank, a share registry or a land titles office will deal with them. That proof is a grant from the Supreme Court. Where there is a will and an executor able to act, the grant is called probate. Where there is not, the court grants letters of administration instead.
HQF Lawyers acts for executors and administrators across Queensland and New South Wales, from our office in Coolangatta on the Gold Coast.
No, and this is the first thing we establish, because the answer changes what the estate costs and how long it takes.
Whether a grant is needed depends on what the deceased owned and how it was held, not on the size of the estate. Assets held as joint tenants usually pass to the surviving owner and never form part of the estate at all. Superannuation and life insurance are frequently paid under a nomination or a trustee’s decision rather than under the will – a point that surprises most executors, and one that can change who receives what.
What is left is assets held in the deceased’s sole name, and that is where the question is decided. Real property in a sole name will generally require a grant. Money, shares and investments depend on the institution.
The decision is made by the organisation holding the asset, not by the court.
It is common for one bank to release funds on a death certificate while another refuses without a grant for the same estate.
Estate assets often sit with banks, superannuation funds, share registries and other investment groups – each with its own release requirements.
Requirements differ between states, banks and government departments. We find out what each one will accept before an application is prepared.
Probate is a document granted by the Supreme Court that allows asset holders to release the deceased’s assets to the person entitled to them.
Debts and tax are dealt with, records are kept, and what remains is distributed in accordance with the will. This is usually the longest stage.
Applications go to the Supreme Court of Queensland.
We check it is the last will made, that there are no codicils and that nothing about the document’s condition or execution will draw a query from the registry. Where there is a problem it is generally fixable, but only if it is identified before lodgement rather than after.
Notice must be given before an application can be filed and the content and timing are prescribed. Errors here are expensive to correct and delay everything behind them.
Where there is no will, or the named executor cannot act. The order of entitlement is set by the rules and is not always the answer families expect.
Most delay in a straightforward estate comes from queries raised after lodgement. We prepare the application to avoid them rather than answer them.
This is a separate question from when the grant issues, and it is where executors most often expose themselves.
Applications go to the Supreme Court of New South Wales.
As in Queensland, we check it is the last will, that there are no codicils, and that nothing about the document will draw a requisition.
Notices of intended application are published on a public register, and a competing or duplicate application changes the approach entirely. We check before we publish, not after.
A published notice cannot be edited. Correcting one after publication costs a fee and time.
New South Wales expects an application within six months of the death. Filed later, it needs an explanation to the court, which we prepare but which is better avoided.
New South Wales has its own notice requirements and its own claim period, and they do not match Queensland’s. This matters in every estate that touches both states.
When someone dies without a valid will they are said to have died intestate. There is still a process and there is still someone appointed to run it, but the will’s instructions are replaced by an order set out in legislation, and that legislation is not the same in Queensland and New South Wales.
The grant is different too. Where there is a will and an executor, the court grants probate. Where there is no will, no executor has been named, so the court grants letters of administration to a person entitled to apply. That person is called the administrator rather than the executor. The practical work of the estate is much the same; the authority comes from a different document.
Application is to the Supreme Court of Queensland. Because there is no executor, the court appoints an administrator from among those entitled to apply and the rules set the order of entitlement. It is not simply whoever comes forward first.
The Succession Act 1981 (Qld) then determines who inherits. A surviving spouse and children come first and where both survive, the estate is divided between them under a formula set out in the Act. Where there is no spouse and no children, the Act works through other relatives in a set order.
Where we act, the early work is establishing who is entitled to apply, whether anyone with a stronger right intends to and whether the statutory outcome is one that is likely to be challenged.
Application is to the Supreme Court of New South Wales. As in Queensland there is no executor, so the court appoints an administrator, most commonly the surviving spouse or de facto partner, or a child.
Chapter 4 of the Succession Act 2006 (NSW) determines who inherits and it can produce a different result from Queensland on the same family. Where there is a spouse and no children, the spouse takes the whole estate. Where there are children and all of them are also the spouse’s children, the spouse still takes the whole estate. It is only where there are children from another relationship that the estate is divided between the spouse and the children.
The early work is the same: who is entitled, whether anyone else intends to apply and whether the statutory outcome invites a claim.
Being named executor means the will appoints you to carry it out. It is a personal role and it does not end when the grant issues – that is closer to the beginning than the end.
In broad terms an executor is responsible for identifying and protecting the assets, establishing the debts, dealing with the deceased’s tax affairs and the estate’s, paying what the estate owes before anyone receives anything, keeping records that stand up to scrutiny, and then distributing what remains in accordance with the will. The role carries obligations to the beneficiaries: to act in the estate’s interests rather than your own, to be even-handed between them, and to be able to account for what you have done. We set out what an executor has to do in more detail separately.
You cannot hand the role to someone else. You can, and most people do, hand over the work.
Where we act, we run the administration and you make the decisions. That includes the correspondence with banks and registries, the tax, the estate records, the timing of distributions, and, often the part executors find hardest, the communication with beneficiaries who want to know when they will be paid.
There is no standard timeframe, and it depends on the estate.
Two separate periods are involved: obtaining the grant, and completing the administration afterwards. The second is usually much longer than the first, and it is the one people underestimate.
Some steps have fixed minimum periods set by the rules in each state, and those cannot be shortened. Everything else is a question of how the estate is handled. The things that most often extend an estate are:
The original will cannot be located, or its validity is not clear on its face
In many cases, payment can be deferred until the estate administration is completed.
Our involvement reduces your responsibilities during a difficult time and our fees are offset by what’s saved in efficiency and accuracy. A quick chat about your situation will give you a clearer understanding of the costs involved.
Book a consultation for clear, practical guidance across Queensland and New South Wales.
