A Will is a document which enables the person making it to direct who should administer their estate on death and also provide for how their assets are to be distributed. Any person over the age of eighteen who is of sound mind (having testamentary capacity) should have a Will.
A valid Will must be made willingly by an adult of sound mind and full awareness and without undue influence from another person. It must be signed and witnessed in the presence of two independent witnesses in accordance with Australian law. The Court may admit a Will which does not meet those requirements in certain circumstances.
If an adult dies without leaving a valid Will, they are said to have died Intestate and the intestacy rules are then applied. The Succession Act (Qld) 1981 sets out a regime for the entitlement of next of kin and dictates who can apply for the right to administer the estate or make a claim against the deceased’s assets. Intestacy can cause additional stress and expense to the bereaved family and complicate the administration of the deceased’s estate.
In the case of Intestacy, a person does not have authority to deal with the deceased’s assets until the Supreme Court of Queensland has granted them Letters of Administration. This grant is similar to a Grant of Probate to the Executor of a valid Will.
In many cases, financial institutions with which the deceased person held accounts and investments will not release the proceeds without sighting the Letters of Administration or Grant of Probate, depending upon the amount invested.
Any assets held jointly will normally pass to the surviving joint owner irrespective of intestacy or any Will provision. This applies to real property held as joint tenants as opposed to tenants in common, and may include other jointly held property.
The Executor is responsible for administering the deceased Estate and usually engages a Solicitor to act, including to make any Probate Application. The Executor’s responsibilities, at its simplest, include ensuring that funeral expenses and other debts of the deceased are paid, preparing a schedule of assets and attending to the sale or transfer of assets and distribution to the entitled beneficiaries, and lodgement of a final Tax Return, if required.