Deceased Estates in Brisbane
A “deceased estate” is composed of some (but, crucially, not all) of a deceased’s assets and liabilities. In many cases, a deceased will leave testamentary instructions in their will on how they want their estate distributed after their death. Otherwise, if there is no will, a deceased estate will be distributed according to the intestacy provisions contained in the Succession Act 1981 . This article explains how different types of assets and liabilities are treated after a deceased’s death, and how a deceased estate is administered in Brisbane.
What is included in a deceased estate in Brisbane?
In Brisbane, a deceased estate contains some of the assets that the deceased owned before they died. An asset can be anything with a current or potential value, from tangible real property to more ephemeral items of value such as stocks and shares, intellectual property or the right to bring certain legal claims.
It is important to note that not every item in the deceased’s possession will be included in their deceased estate. For instance, real property that was jointly owned by the deceased and another person is not included in the estate because it automatically becomes the sole possession of the surviving owner. Joint bank accounts automatically become the sole possession of the surviving account holder. Similarly, any asset that has a binding death benefit nomination in place (as is the case with many superannuation funds and insurance policies) are withheld from the deceased estate and transferred to the designated beneficiary.
It may come as a surprise that a deceased estate is also partially made up of the liabilities that survive the death of the deceased. The estate must discharge certain debts before any assets are distributed to beneficiaries. Each debt is paid in a statutory order, starting with compliance with government orders (such as negligent child support payments and tax obligations), followed by the payment of secured debt (such as mortgages on real property). Unsecured debts (for instance, credit card or informal family loans) are discharged last and only in the event that there are sufficient assets in the deceased estate to cover the liability. There are some debts (such as HECS / HELP) that are cancelled and not included in the deceased estate.
How are deceased estates administered in Brisbane?
After the deceased passes away, a personal representative administers the deceased estate. In Brisbane, there are two types of deceased estate representatives: executors and administrators. The deceased themselves appoint one or more executors in their will. Typically the testator (will-maker) chooses an executor from amongst their immediate family or a trusted friend, but they can arrange to pay a professional to act as their executor. The chosen executor does not have to accept the role and can either ask the Public Trustee to administer the deceased estate on their behalf, or renounce the appointment altogether.
In the absence of another candidate, when an executor renounces their appointment, the Supreme Court will select an administrator to manage a deceased estate in Brisbane. This is also the practice when the deceased dies without appointing an executor or making a will. An administrator will act much as an executor, with the caveat that the administrator follows intestacy law rather than the instructions of the deceased outlined in the will.
The personal representative (executor or administrator) takes responsibility for the deceased estate, settles debts and safeguards assets until they are transferred out of the estate. In most cases, it is appropriate for the personal representative to apply for a probate grant from the Supreme Court of Queensland to establish their right to administer the deceased estate in Brisbane and, if necessary, prove the validity of the will.
Timeframes for deceased estates in Brisbane
Assets are held in the deceased estate for as long as necessary, but there will be minimal wait times before a beneficiary can receive their inheritance. Even after a personal representative obtains a probate grant, they must wait at least six months from the testator’s death to allow time for claimants to come forward to contest or challenge the will. Beyond this time frame, there may be further delays while the personal representative locates beneficiaries, defends the estate against legal action, or arranges for ongoing testamentary arrangements, such as discretionary trusts.
The personal representative does have a fiduciary duty to administer the deceased estate in an efficient manner and avoid unnecessary delays. It is expected that a deceased estate will typically be wrapped up within twelve months, or what is commonly known as the executor’s year. Beneficiaries are entitled to lodge a complaint if they feel that there is undue delay in the transfer of assets out of the deceased estate due to the personal representative’s mismanagement.
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