WILLS AND ESTATES

UNDERSTANDING GRANT OF PROBATE

It is a common misunderstanding that a Grant of Probate or Letters of Administration is necessary in every estate. ZINTA HARRIS explains why it’s worth checking before spending.

Agrant is a Supreme Court-issued document that recognises someone’s authority to administer the estate. The three main types of non-contested grants are: 1. Probate, when there is a will and the named executors are willing and able to act; 2. Letters of administration on intestacy, when there is no will; 3. Letters of administration with the will, when there is a will, but a person other than the named executor will manage the estate. For example, if the only named executor has pre-deceased, is incapable, or wishes to renounce.

While there are other types of grants issued for special circumstances, these three are the most common.

Sometimes in the simplest estate cases, no grant is needed, which means you can avoid the cost of making the application, particularly if there is no risk of litigation during the estate administration.

In Queensland, if the only asset of significant value is a house or other real estate, then it’s possible to have the title to the property transferred to the named beneficiaries through the land titles registry.

In most non-contested estates, however, applying to the court for a grant will be necessary before any other steps can be taken.

This is because most estates are made up of more assets than just one house.

Banks and other institutions will often have a monetary threshold which will determine whether they will require a grant of representation before transferring assets or funds to the personal representative.

The Australian Taxation Office (ATO) also has a policy requiring this formal representation before disclosing information about the deceased’s tax affairs or paying any tax refund.

Even if only one bank, institution or the ATO insists on a formal grant, then an application will be required.

If there is a risk of litigation against the estate, or if court proceedings need to be commenced on behalf of the estate, a grant should be obtained so that the legal personal representative (the technical name for the person who personally represents the deceased in the administration of the estate) has the proper authority to make and defend court applications and has access to the protections given to them under the relevant legislation.

If you have been named an executor of a will or if you are entitled to apply for letters of administration and you have worked out that a grant is needed, the next step is to make the court application for a grant.

We have free checklists and eBook resources for executors and administrators. Zinta Harris is an accredited specialist in succession law and business law (Qld) and owner of Resolve Estate Law. Call 3371 0795 or visit resolveestatelaw.com.au

THE LAW AND YOU

Baby Boomers are retiring which means they have many legal issues to attend to and, as DON MACPHERSON suggests, the pandemic has heightened the need for expert advice.

IF YOU need an electrical job done you don’t get a plumber, you choose someone who knows what they are doing because they do it every day.

Similarly, generalist solicitors who do conveyancing, personal injury claims and criminal law, are not the experts in elder law.

Lawyers for seniors, or elder lawyers, are trained by life and years of practice, to offer specialised advice covering the range of legal issues that affect families in their senior years.

Clients of a certain age tend to be “old school” in terms of values. Trust is vital.

While cost is, of course, always important, elder law clients tend to look for professionals –lawyer, doctor, accountant – as longer-term trusted advisors.

They are less transactional, less focused on changing from supplier to supplier, and more focused on developing a relationship of trust, integrity, and familiarity. The key is

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expertise, with empathy.

This is not a time for mediocre decisions, or advice and the internet is not a panacea for knowledge on all the issues that elder clients may encounter.

Specialist advice, mindful not only of the law but also of client needs, is essential.

Elder lawyers need to be focused on the same old school values of their clients and offer them the reliability and comfort of knowing that every phone call is not being billed, every event is not recorded on a time sheet, and that a global, rather than transactional approach is taken to inquiries.

In short, don’t choose a generalist to do specialist work.

Elder clients are not files, not numbers, they are people, who should be treated with the dignity and respect accorded those who have built this country and are simply embarking on another part of their life journey. Don Macpherson has been a trusted advisor for seniors and their families for more than 30 years. Call Brisbane Elder Law 1800 961 622 or visit brisbaneelderlaw.com.au

CHOOSE EXECUTORS WISELY

ONE definition of a pitfall is “a covered pit for use as a trap”. Although the inference of setting traps does not sit well with estate law, there are indeed traps awaiting the unwary executor.

An executor has legal responsibility in the administration of a deceased person’s estate to preserve and collect assets, pay debts, resolve claims against the estate and then carry out the testator’s wishes in accordance with the will.

If executors fail in the proper performance of their duties, serious consequences will follow.

When choosing an executor, look beyond favourite children and friends and consider the person who would best manage the administration of the estate.

An executor requires skills to not only manage the assets but also to communicate with beneficiaries, the lawyer acting for the estate, asset-holders and other stakeholders.

The primary qualification is to be reliable and honest[1]. Proper estate management also includes completing the administration of the estate efficiently and without delay.

In many cases, multiple executors are appointed. When they are unable to work together, an application may be made to remove one or all of them and appoint an independent administrator.

Litigation is an option when executors wish to resolve disputes. It does have disadvantages, for example, it may divide families and reduce the asset pool of the estate.

Other options include seeking judicial advice which may be advising whether or not the executor is justified in taking a particular action. The executor is protected from liability by following the advice given.

If seeking judicial advice, be aware that the court is not an arbiter of the terms of a commercial contract but will consider whether the executor has the power to enter into such a transaction.

An executor is required to lodge tax returns for the deceased up to the date of death and for the estate from the date of death. It is recommended that executors seek specific tax advice from an accountant or tax advisor.

When no tax returns are required to be lodged, an executor should notify the Commissioner of Taxation accordingly.

Part of the executor’s role is to pay for estate liabilities and those incurred in the administration of an estate.

Prior to distributing any monies to beneficiaries, executors should ensure that there are sufficient funds in an estate to meet its liabilities and expenses, or they may be personally liable.

If an executor has not distributed an estate within 12 months of the date of death, then a beneficiary of a legacy (a gift of money), may claim interest on the unpaid legacy until it is paid in full.

In Queensland, the rate is 8 per cent unless otherwise determined by the Court.

Estates are commonly administered without difficulty. A number of pitfalls could be avoided if a testator and legal adviser give careful consideration to the most appropriate person to be an executor, bearing in mind the duties and relationships among beneficiaries. Visit degroots.com.au

At Resolve Estate Law, we offer a range of Estate Administration services to suit your needs. The aim of our services is to help tame the sense of overwhelm you might be feeling as you face the legal landscape in the aftermath of your loss.

To help clients manage simple Grant applications we offer a fi xed-fee probate and letters of administration service, where we take care of it all for you. Contact us by phone or email to receive our fi xed-fee probate and letters of admistration pack setting out our costs for this service.

Scan QR code to learn more about our Estate Administration Services.

PEACEFUL RESOLUTION OF ESTATE DISPUTES / SIMPLIFIED ESTATE ADMINISTRATION

t: 07 3371 0795

e: advice@resolveestatelaw.com.au w: resolveestatelaw.com.au

We believe in making it personal.

Wills aren’t about lawyers, they’re about you, and your desire to ensure that the results of all your hard work are well protected. Our mission for over 30 years has been to provide easy to understand wills that are custom made for you and flexible enough to change as your circumstances change. We are pleased to announce our bespoke estate planning tool, to assist you in creating and updating a professional legal Will easily and efficiently online. To find out more visit degroots.com.au or call us today on 3221 9744. Phone 3221 9744 degroots.com.au