Estate Executor’s Guide – [Part 3] Court proceedings by and against executors and administrators

Estate Executor Guide Four Part Series – Part 3

executors guide 1No will – Application for Letters of Administration

If there is no will, the deceased is said to have died intestate and the “rules of intestacy” apply for division of estate assets. Property in the sole name of the deceased (or the deceased’s share of assets co-owned other than as “joint tenants”) must be distributed to a spouse and children or, in their absence, to other relatives, according to the specific proportions mandated in the rules.

In Queensland, the spouse receives the first $150,000 plus one third of the residue where there is more than one child, or half if only one child. The surviving child or children share in the remaining half or two thirds of the residue. Children may be able to bring a “Family Provision” application to increase their share of the residue, due to their financial or other need for a greater benefit.

A family member may apply to the Supreme Court for “Letters of Administration”, as a consequence of which they become the administrator of the estate. A spouse has seniority in making such application but if there is no spouse or he or she declines, a child has standing to seek the grant. Likewise a parent can apply, and in succession, more distant relatives.

A creditor may also apply if others with priority to the grant decline to do so. An administrator performs the same role effectively as an executor.

A will but no executor – Application for Letters of Administration

If the persons named as executors have died or are unwilling to act, a family member or creditor can apply for Letters of Administration to administer the will.
The order of family member priority to the grant that applies if there is no will, is also observed in this instance.

Incorrectly signed wills; Unsigned wills; Informal wills

An incorrectly signed will can be validated by a court even where there has been an attempt to have it signed. An application is required to be filed pursuant to s 18 of the Succession Act and served on all affected persons. If there is evidence of an attempt to properly sign it and that the will-maker intended it to reflect his final testamentary intentions, the court will – in the absence of any conflicting evidence – likely approve the will.

Formally prepared wills that are left unsigned are different. They may qualify as a valid “informal” will – even without any attempt to have it signed – if there is evidence that the will maker intended it to have effect as his final will in its unsigned state. The application to the court for approval in this situation is also required to be made under s 18 of the Succession Act.

There are many other categories of informal wills including those roughed out on paper will or recorded in a computer file, text message or video recording. For these to be valid, there must be evidence that the person intended the paper writing or recording to have operative effect as his or her last will notwithstanding its unconventional means of creation. The intention to have operative effect must be clear and unambiguous but can be evidenced in the paper writing or recording itself or elsewhere.

Probate of will – Application for Probate

Probate is necessary to give the executor power to handle some elements of the deceased’s assets, such as bank accounts, real estate, or shares. Most banks will not allow the executor to deal with an account with a balance exceeding about $20,000 (although this varies from bank to bank) without first having a grant of probate.

A solicitor should be engaged to ensure this process runs smoothly. The first step is advertising the proposed application, and the application to the court can only be made after 14 days from that advertisement. The application for probate is accompanied by an affidavit setting out the applicant’s right to obtain the grant. Also required are the death certificate, the original Will, a description of the estate affairs and any relevant background information.

A grant of probate also protects an executor in that he or she has the assurance that the will being administered has the approval of the court. Should facts arise that warrant withdrawal the grant of probate – for example, the discovery of a later will – an executor has no personal liability for having taken the steps performed.

Concerns as to will’s authenticity – Application for “solemn form” pronouncement

An executor who has concerns as to the legitimacy of a will or its execution – for example, due to the alleged lack of legal capacity of a testator or the veracity of the will-maker’s signature – may ask the court to decide the issue on the evidence produced.

A third party, for example someone provided for in an earlier will but cut out of a later one, may also make such an application. Third parties will usually preface such action by filing a caveat against a grant in the Supreme Court registry. Medical records and statements from the persons who witnessed the will-maker’s signature are required to be obtained so their evidence as to the circumstances of the making of the will can be presented to the court.

Expert medical opinion as to the mental capacity of the will maker is also often needed. The pronouncement of a will in solemn form means its provisions cannot be subject to later contest except for fraud or the discovery of a later will.

Inappropriate executor – Application for removal

A beneficiary may attempt to bar an executor from seeking a grant of probate by seeking an order that the person be “passed over”. The order must be obtained before the grant of probate is made. A court will only be persuaded that a named executor be passed over, if genuine reasons for the executor’s disqualification are placed before the court.

The court may also order removal of an executor or a testamentary trustee from their position due for example, to their ill-health or misconduct.

Challenging the Executor’s Actions – Application for review

If you are a beneficiary under the will and are unhappy with the Executor’s actions, you may be able to get the administration of the estate reviewed. QEL can provide legal advice and represent you throughout that process.

Disputes between executors

Executors don’t always agree but they should always work to resolve any differences of opinion and avoid chronic hostility. If they can’t it may be necessary for one of them to seek the assistance of the court.

Delay – Application for removal

The executor must administer the estate expeditiously and should report progress to beneficiaries regularly. Failure to do so can be a ground for removal of the executor from the position.

You have completed Part 3 of the Estate Executor Guide Four Part Series

If at any time you need legal involvement in your administration, please call us on 1300 580 413.

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Last updated: 09 June 2022