Applying for Letters of Administration in Queensland

Applicable laws

Each State has its own laws governing the administration of the estate of an intestate person. This kit will state the law as it applies in Queensland. If the deceased was domiciled in QLD and the assets are in QLD then the law of QLD will be the applicable law. If you die without a Will, you are said to have died ‘intestate’. In this case, your assets are distributed in line with Part 3 of the Succession Act 1981 (the Act).

Applicable Court

Applications are filed at the Probate Office of the Supreme Court of QLD (contact details are provided at the back of the kit). A grant of Letters of Administration will generally be issued by the Court within 3 to 6 weeks of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will be sent out by letter.

When does intestacy occur?

 When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a will. Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a will. Total intestacy occurs when the deceased failed to make a will at all, failed to make a valid will or made a valid will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid will but the terms of the will do not dispose of the whole of the estate. This service is aimed at the situation where the deceased dies without having made a will or where the will is not complete, but may still apply.

 The distribution of an intestate estate

 State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. They are given legal authority to act under a court order which is known as the grant of letters of administration.

Who can apply for letters of administration?

The Uniform Civil Procedure Rules 1999 and Part 3 of the Succession Act 1981 set out the persons to whom the court may grant letters of administration on intestacy in descending order of priority as follows: -

• surviving spouse

• children

• grandchildren or great-grandchildren

• parent or parents

• brothers and sisters

• children of brothers and sisters

• grandparent or grandparents

• uncles and aunts

• first cousins

• anyone else the court may appoint

The court can make a grant to any person in priority to any person mentioned above so for example a parent of the deceased will receive a grant in priority to the deceased’ brother or sister. Each applicant must establish priority by proving that any person higher up in the list is not entitled either because of death, incapacity or renunciation. For example, if the brother of the deceased wished to make an application to be appointed as the administrator of the estate, he would have to confirm in his application that the deceased did not leave a spouse, de facto partner or any children and provide evidence of the death, in capacity or renunciation of the deceased’ parents. Proof of this will need to be included in the application. This is explained in more detail in the Step by Step guide in Document 4.

If the deceased left both a spouse and de facto partner, the court can make a grant to one or more of them or to a person lower in the order of priority. The applicant does not have to establish priority for a person equal or lower than the applicant in the order of priority. Sworn evidence will need to be provided as to the existence or non-existence of a spouse or a person claiming to be a de facto partner. 

Definition of a De facto relationship

A de facto relationship is a relationship in which a couple lives together on a genuine domestic basis. This definition is the same across Queensland, New South Wales, Victoria, Northern Territory, South Australia, Western Australia, Tasmania, and the Australian Capital Territory.

Couples who are same sex or opposite sex are included in the definition of de facto relationship under Australian law. A couple by marriage or who are related by family cannot be considered to be in a de facto relationship. However, if a person is legally married they can still be considered to be in a de facto relationship with another person they are not married to.

A person would not have a de facto partner unless they have lived together as a couple for two years without separation. Therefore, the length of time to be considered de facto is two years. However, if there are children or substantial contributions to joint property, exceptions are made to this rule.

De facto relationships are governed under the Family Law Act 1975. This means that your rights regarding property settlement, child maintenance and separation are dealt with under the Family Law Act 1975. De facto relationships in Western Australia are governed by the Family Law Act 1997 (WA), however.

The role of the administrator

 On the grant of administration of the deceased’s estate, all the deceased’s assets become vested with (become the property of) the administrator. For example, if the deceased held shares in a company, upon seeing the grant from the court, the company will register the administrator as the shareholder in place of the deceased. This will enable the administrator to sell the shares and distribute the proceeds in accordance with the intestacy rules discussed below. The legal authority of the administrator to deal with the deceased person’s estate has been confirmed by the court. This will satisfy those institutions who hold the deceased’s assets that the administrator has the authority to deal with those assets and will give the administrator some protection from liability in dealing with the estate. The duties of the administrator are explored in more detail in Document 2.

The purpose of the State rules of intestacy

Intestacy occurs quite frequently in Australia. The aim of the legislation in each state is to put try and produce the same sort of result as if the deceased had made a will. It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit. The rules make assumptions about who the deceased is closest to. The rules do not therefore take account of individual circumstances. The rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.

An explanation of the rules of intestacy

Each State and Territory in Australia has rules governing how the estate of an intestate is to be distributed. In Queensland, the rules are set out in Sections 35 - 37 and Schedule 2 of the Succession Act 1981. Please note, references to the deceased’s spouse include both a spouse and a de facto partner as explained in paragraph 6 above.

A. If there are no children but a surviving spouse / de facto partner (who meets the criteria explained in 6 above), then the whole of the estate will pass to the spouse or the de facto.

B. When there are no children but a surviving spouse AND domestic partner, then their respective shares will depend on the options contained in Section 36 Succession Act 1981 as follows: -

Either

i. In accordance with a written distribution agreement between the spouses about distributing the entitlement between them;

ii. In accordance with a distribution order made by the court. A spouse / de facto or personal representative (i.e. the Administrator) can apply to the court for a distribution order. The court may order that the entitlement is distributed in the way it considers is just and equitable, this could mean that the entitlement is solely to be distributed to 1 of the spouses; or

iii. In equal shares as decided by the Administrator on service of a notice under section 36(3). The notice will state that the administrator may be entitled to distribute any entitlement of the spouses equally after 3 months unless they either enter into a distribution agreement or apply to the court for a distribution order.

C. If the deceased had children and a surviving spouse the spouse would receive the household chattels (meaning furniture, effects, cars, garden effects, pets, plate, plated articles, linen, china, glass, books, pictures, jewellery, ornaments, musical instruments, wines and food but not money, stocks or shares or anything used for business purposes); 

AND

If the estate is valued less than $150,000, the spouse will get the remainder of the estate. If the estate is valued at over $150,000, the spouse will get $150,000 plus one half of the balance (if there is only one child who survived (or who did not survive but left children) or one third of the balance if there is more than one child. The remaining one half or two thirds will be divided between the children or in the event of their death their share will be divided amongst their children.

D. If the deceased had children and a de facto partner, and if the de facto partner had lived with the deceased continuously for over 2 years, the de facto partner would inherit in the same way as a surviving spouse as above. If the de facto relationship was under two years, the children would inherit.

E. If the deceased left children, a spouse AND a de facto partner, then the spouses share (meaning the first $150,000 plus household contents plus a third or half of the remainder (depending on whether there was more than one child) would be divided between the spouse and de facto partner based on the options explained in Paragraph B above..

F. If the deceased left children but no surviving spouse or de facto partner, the children would inherit. If a child had died, their share would go to their children (the grandchildren).

G. If the deceased left no children, spouse or de facto partner, the parent(s) would inherit.

H. If the deceased left no children, spouse / de facto or parents, the next of kin (meaning brothers, sisters, grandparents, uncles/aunts, nephews/nieces and cousins) would inherit in the following order:

• Brothers / sisters / nephews / nieces

• Grandparent(s)

• Uncles / Aunts / Cousins

If none of the above exist, then the estate will pass to the State.

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