Applicable Laws for Qld
When a loved one passes without a
WILL they are said to have died ‘intestate”.
Within Australia each State has its own laws governing the administration of the estate of an intestate person.
If the deceased was domiciled in QLD
and the assets are in QLD, then the law of QLD will be the applicable law. In this case, your assets are distributed in line with Part 3 of the Succession Act 1981 (the Act). Hence in QLD there is a proper way of applying letters of administration and legal assistance should be sought.
Applications are filed at the Probate Office of the Supreme Court of QLD. An application of a grant of Letters of Administration will generally be issued by the Court within 3 - 6 weeks of the application being filed. At times additional information may be required and this can extend the process. Further information is also known as requisitions, and these are sent out by letter from the courts.
What exactly is intestacy?
When a person dies, leaving real property (land or anything attached to it) or personal property of any kind and so when that does happen, the 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 and engrossing a will. Intestacy occurs when either the whole or part of the deceased’s estate has no WILL linked to it. This can also happen when they made a valid will, but all beneficiaries have since passed on. There also is partial intestacy, this occurs when the deceased made a valid will but the terms of the will do not dispose of the whole of the estate.
State law has provisions to appoint an administrator to administrate the deceased’s estate in the absence of a will. This person has the duty of paying any debts the estate owed and distributing the assets under the rules of intestacy. Also, they have the authority to act under a court order.
This is where the term grant of letters of administration is known.
Applying for Letters of Administration
The Uniform Civil Procedure Rules 1999 and Part 3 of the Succession Act 1981 set out the persons to whom the court may grant letters of administration on intestacy. These are in a descending order of priority:
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
Intestacy occurs frequently in Australia. The aim of the legislation is to produce the same end result as if the deceased had made a will. It identifies the deceased’ primary beneficiaries and their closest relatives. Also, this assumes that these are the people that the deceased would most want to benefit. Additionally, the rules make assumptions about who the deceased was closest to. The rules do not consider individual circumstances and these rules act as a safety net to protect those who have died intestate and not had a WILL that gave
some direction to what they would have liked to happen to their assets when they die.
Like to know more: Hogan Stanton Lawyers or call us on 07 3278188 to discuss your situation with one of our lawyers today
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