Grants of Probate or grants of Letters of Administration to Executors or Administrators by the Queensland Supreme Court

If you are the executor of a will or estate and legal advice call Lawyers Qld now Brisbane and Regional Qld 0730365233 or Gold Coast 0756770533.

In Queensland the Legislation that sets out the process of dealing with an estate is called the Succession Act 1981. The Succession Act 1981 defines the executor or administrator for a deceased person as the "Personal Representative" of the deceased.

Set out below are relevant sections of the Succession Act 1981. In summary, whether a person has a will or not the process for being recognised as the "Personal Representative" for the deceased involves applying to the Queensland Supreme Court for a grant of either Probate or Letters of Administration.

Once the Queensland Supreme Court grants probate or letters of administration the property of the estate vests in the person to whom the grant is made to deal with according to law (where there is a will, in accordance with the wishes expressed in the will).

It is important to note that it may not be necessary to apply for probate or letters of administration in relation to property held as a joint tenant.

Section 45 of the Succession Act 1981 explains the "Devolution of property probate and administration". The word Devolution means the legal transfer of property from one owner to another.

Devolution of property on death

(1) The property to which a deceased person was entitled for an interest not ceasing on his or her death (other than property of which the deceased person was trustee) shall on his or her death and notwithstanding any testamentary disposition devolve to and vest in his or her executor and if more than 1 as joint tenants, or, if there is no executor or no executor able and willing to act, the Public Trustee.

(2) Upon the court granting probate of the will or letters of administration of the estate of any deceased person the property vested in his or her executor or in the public trustee under the provisions of subsection (1) shall devolve to and vest in the person to whom the grant is made and if more than 1 as joint tenants.

(3) Where at any time a grant is recalled or revoked or otherwise determined the property of the deceased vested at that time in the person to whom the grant was made shall be divested from the person and shall devolve to and vest in the person to whom a subsequent grant is made; and during any interval of time between the recall, revocation or other determination of a grant and the making of a subsequent grant the property of the deceased shall devolve to and vest in the Public Trustee.

(4) The title of any administrator appointed under this Act to any property which devolves to and vests in the administrator shall relate back to and be deemed to have arisen upon the death of the deceased as if there had been no interval of time between the death and the appointment.

(4A) However, all acts lawfully done by to or in regard to the public trustee before the appointment of an administrator shall be as valid and effectual as if they had been done by to or in regard to the administrator.

(5) For the purposes of this section, and notwithstanding the provisions of the Trusts Act 1973 , section 16, an executor includes an executor by representation under the provisions of section 47 of this Act.

(6) While the property of a deceased person is vested in the public trustee under this section, the public trustee shall not be required to act in the administration of the estate of the deceased person or in any trusts created by the will of the deceased person, or exercise any discretions, powers, or authorities of a personal representative, trustee or devisee, merely because of the provisions of this section.

(7) Nothing in this section affects the operation of an Act providing for the registration or recording of any person as entitled to any estate or interest in land in consequence of the death of any person notwithstanding that there has been no grant in the estate of the deceased person.

Section 49 of the Succession Act 1981 sets out the powers of personal representatives as follows:

(1) Subject to this Act a personal representative represents the real and personal estate of the deceased and has in relation to all such estate from the death of the deceased all the powers hitherto exercisable by an executor in relation to personal estate and all the powers conferred on personal representatives by the Trusts Act 1973.

(2) Upon the making of a grant and subject thereto, the powers of personal representatives may be exercised from time to time only by those personal representatives to whom the grant is made; and no other person shall have power to bring actions or otherwise act as personal representative without the consent of the court.

(3) Subject to the grant, the powers of those personal representatives to whom a grant is made shall relate back to and be deemed to have arisen upon the death of the deceased as if there had been no interval of time between the death and the grant.

(4) The powers of personal representatives shall be exercised by them jointly.

(5) The court may confer on a personal representative such further powers in the administration of the estate as may be convenient.

Section 52 (1)of the Succession Act 1981 sets out the duties of personal representatives as follows:

The personal representative of the deceased person shall be under a duty to -

Collect and get in the real and personal estate of the deceased and administer it according to law; and

When required to do so by the Court, exhibit on oath in the Court a full inventory of the estate and when so required render an account of the administration of the estate to the Court; and

When required to do so by the Court, deliver up the grant of probate or letters of administration to the Court; and

Distribute the estate of the deceased, subject to the administration thereof, as soon as may be; and

Pay interest upon any legacy- (i) from the first anniversary of the death of the testator until payment of the legacy; or (ii) in the case of a legacy that is, pursuant to a provision of the will, payable at a future date - from that date until payment of the legacy.

Section 52 (2)of the Succession Act 1981 goes on to say:

If the Personal Representative neglects to perform his or her duties as aforesaid the Court may, upon the application of any person aggrieved by such neglect, make such order as it thinks fit including an order for damages and an order requiring the Personal representative to pay interest on such sums of money as have been in the Personal Representative's hands and the costs of the application.

Experience and understanding Matter

Our principal Karen Schwede has 27 years experience as a Solicitor. She has the maturity and life experiences to understand all of the emotions and pressures involved in being an Executor.

Call us now Brisbane and Regional Qld 0730365233 or Gold Coast 0756770533.