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Applicable laws

Each State has its own laws governing the administration of the estate of an intestate person. In Queensland, the applicable laws are the Succession Act 1981 and the Uniform Civil Procedure Rules 1999. This kit will state the law as it applies in Queensland. If the deceased was domiciled in Queensland and the assets are in Queensland then the law of Queensland will be the applicable law.

Applicable Court

Applications are filed at the Probate Office of the Supreme Court of Queensland (contact details are provided at the back of the kit). A grant of Letters of Administration will generally be issued by the Court within 3 weeks of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will generally be sent out by letter within 3 weeks.

When intestacy occurs

When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a will. Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a will. Total intestacy occurs when the deceased failed to make a will at all, failed to make a valid will or made a valid will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid will but the terms of the will do not dispose of the whole of the estate. This kit is aimed at the situation where the deceased dies without having made a will.

The distribution of an intestate estate

State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. They are given legal authority to act under a court order which is known as the grant of letters of administration.

Who can apply for letters of administration?

The Uniform Civil Procedure Rules 1999 set out the persons to whom the court may grant letters of administration on intestacy in descending order of priority as follows: -

  • surviving spouse
  • children
  • grandchildren or great-grandchildren
  • parent or parents
  • brothers and sisters
  • children of brothers and sisters
  • grandparent or grandparents
  • uncles and aunts
  • first cousins
  • anyone else the court may appoint

The court can make a grant to any person in priority to any person mentioned above so for example a parent of the deceased will receive a grant in priority to the deceased’ brother or sister. 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. For example, if the brother of the deceased wished to make an application to be appointed as the administrator of the estate, he would have to confirm in his application that the deceased did not leave a spouse, de facto partner or any children and provide evidence of the death, in capacity or renunciation of the deceased’s parents. Proof of this will need to be included in the application. This is explained in more detail in the Step by Step guide in Document 4.

If the deceased left both a spouse and de facto partner, the court can make a grant to one or more of them or to a person lower in the order of priority. The applicant does not have to establish priority for a person equal or lower than the applicant in the order of priority. Sworn evidence will need to be provided as to the existence or non-existence of a spouse or a person claiming to be a de facto partner.

Definition of a de facto partner

References in the legislation to the spouse of the deceased include both a spouse and a de facto partner. A de facto partner is defined in section 32DA of the Acts Interpretation Act 1954 as a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family. The following circumstances can be taken into account in deciding whether 2 persons are living together on a genuine domestic basis: -

  • the nature and extent of common residence
  • the length of the relationship
  • whether or not a sexual relationship exists
  • the degree of financial dependence or interdependence
  • ownership, use and acquisition of property
  • degree of mutual commitment to a shared life
  • the care and support of children
  • the performance of household duties
  • the reputation and public aspects of the relationship

In accordance with the definition provided in section 5AA Succession Act 1981, a person is the spouse of a deceased person only if, on the death of the deceased, the person was the deceased’ husband or wife OR The person was the deceased’ de facto partner (in accordance with the definition above) AND the person and the deceased had lived together as a couple on a genuine domestic basis for a continuous period of at least 2 years ending on the deceased’ death.

The role of the administrator

On the grant of administration of the deceased’s estate, all the deceased’s assets become vested with (become the property of) the administrator. For example, if the deceased held shares in a company, upon seeing the grant from the court, the company will register the administrator as the shareholder in place of the deceased. This will enable the administrator to sell the shares and distribute the proceeds in accordance with the intestacy rules discussed below. The legal authority of the administrator to deal with the deceased person’s estate has been confirmed by the court. This will satisfy those institutions who hold the deceased’s assets that the administrator has the authority to deal with those assets and will give the administrator some protection from liability in dealing with the estate. The duties of the administrator are explored in more detail in Document 3.

The purpose of the State rules of intestacy

Intestacy occurs quite frequently in Australia. Government statistics reveal that some 20% of the matters dealt with by the probate registry of the Supreme Court of Queensland in 2011 involved applications made in circumstances of intestacy. The aim of the legislation in each state is to put try and produce the same sort of result as if the deceased had made a will. It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit. The rules make assumptions about who the deceased is closest to. The rules do not therefore take account of individual circumstances. The rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.

Can I apply for Letters of Administration myself?

Yes. AussieLegal offers a number of legal kits that are specifically designed to help family members make a personal application and save thousands in legal fees:

Letters of Administration Plus $1,250.00

Independent solicitors and paralegals will do all the hard work and prepare all correspondence and the application to the Supreme Court on your behalf.

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