Probate and Dying Intestate in Queensland

Probate is a legal process that is followed after someone dies to administer their estate. In Queensland, the process is overseen by the Supreme Court of Queensland. The purpose of probate is to validate the deceased person’s will and ensure that their assets are distributed according to their wishes. If someone dies without leaving a valid will, it is known as dying intestate, and the process of administering their estate is different.

Probate in Queensland

When someone dies, the executor named in their will is the responsible person should they apply for probate. The executor is the person who is responsible for carrying out the deceased person’s wishes and distributing their assets. The process of obtaining probate involves several steps, including:

Gathering information – The executor must gather information about the deceased person’s assets, including property, bank accounts, investments, and any other assets that need to be distributed.

Applying for probate – The executor can submit an application to the Supreme Court of Queensland. This application includes a copy of the deceased person’s will and an inventory of their assets.

Obtaining a grant of probate – If the court is satisfied that the will is valid and the executor is authorized to act, it will issue a grant of probate. This grant gives the executor the legal authority to administer the estate.

Administering the estate – The executor must distribute the assets of the estate according to the deceased person’s wishes as outlined in their will. They are also responsible for paying any debts or taxes owed by the estate.

The probate process can take several months to complete, depending on the complexity of the estate and any disputes that may arise.

Dying Intestate in Queensland

If someone dies without leaving a valid will, they are said to have died intestate. When this happens, the process of administering their estate is different. Instead of an executor applying for probate, an administrator is appointed by the court. The administrator is typically a close family member, but if there are no suitable candidates, the court may appoint a public trustee.

The process of administering an intestate estate is similar to probate, but there are some key differences. Instead of following the instructions in a will, the administrator must distribute the assets according to the rules of intestacy. These rules are set out in the Succession Act 1981 (Qld) and are designed to ensure that the estate is distributed fairly.

The rules of intestacy dictate that the estate is first distributed to the deceased person’s spouse or de facto partner. If the deceased person had no spouse or de facto partner, the estate is distributed to their children. If there are no children, the estate goes to the deceased person’s parents, then their siblings, and so on. If there are no living relatives, the estate goes to the state government.

It is important to note that if someone dies intestate, their assets may not be distributed according to their wishes. For example, if the deceased person wanted to leave a specific item to a particular family member or friend, this may not happen if the item is considered part of the estate and is distributed according to the rules of intestacy.

Avoiding Intestacy

The best way to ensure that your assets are distributed according to your wishes is to make a valid will. In Queensland, a will must meet certain requirements to be considered valid. These requirements include:

The will must be in writing – A will can be handwritten or typed, but it must be in writing.

The will must be signed – The will must be signed by the person making it (the testator). If the testator is unable to sign, they can direct someone else to sign on their behalf.

The will must be witnessed – The will must be signed by two witnesses who are present at the same time. The witnesses must also sign the will, and they cannot be beneficiaries under the will.

The testator must have capacity – The testator must have the mental capacity to understand the nature and effect of the will and the property they are disposing of.

The testator must have testamentary intention – The testator must intend for the document to be their will and understand the consequences of their instructions.

By making a valid will, you can ensure that your assets are distributed according to your wishes, and you can also nominate an executor to manage your estate after you die.

It is important to update your will regularly, especially if your circumstances change. For example, if you get married, have children, or acquire new assets, you should update your will to reflect these changes.