After someone Dies: Probate. Letters of Administration

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Administrating or 'sorting' the Estate of a loved one can be time consuming and sometimes complicated. You may be the Executor of a Will or are in a close relationship with the person who has passed.  It is very common that people need some legal advice on what to do when someone dies.

O’Shea Dyer Solicitors offer a low fixed fee First Appointment of $330 (inc gst) for all Estate enquiries.  You get to chat with an experienced Lawyer who understands the issues and the laws that apply. You can ask questions and our experienced Estate Lawyer will give you advice.

Sometimes it is necessary to obtain Probate or Letters of Administration or for transfers of property to be prepared.  We can take all the stress away and look after everything that needs to be done for the Administration of the Estate.  Alternatively, we can assist you as much or as little as you need to complete the Administration yourself.

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What does an Executor need to do?

If you have been appointed as the Executor of a Will or you are the Next of Kin of a person who has died without a Will, there are a few things to be done.

Basically, all debts need to be paid, assets collected and then payments made to Beneficiaries as set out in the Will, or if there is no Will, in accordance with intestacy laws.

Sometimes it is necessary for the Executor to obtain a Grant of Probate or Letters of Administration.

Sometimes there is a claim from a family member against the Estate. The Executor’s job is to uphold the terms of the Will, defend claims and protect the Estate. Sometimes a claim is strong, and the Executor could look to settle the claim before incurring significant costs.

What is a Grant of Probate or Letters of Administration?

Probate

Usually, a third party like a Bank, a Nursing Home or the ATO requires an Executor to obtain a Grant of Probate.  They need this before they will close the deceased’s bank accounts, release funds or tax details and pay the funds to the Estate.  If there is a valid Will, an Application is made for a ‘Grant of Probate’ from the Supreme Court of Queensland. The Application requires various documents to be prepared and an advert to be placed in the Qld Law Reporter.

The Probate Order is usually made by the Court Registry without the need to attend Court in person. The ‘Grant of Probate’ is an Order of the Court that approves the Will as the deceased’s last Will, and that the person who the Grant is given to, is the person entitled to administer the deceased’s estate.

Probate protects the Executor and third parties. If an Executor administers an Estate without Probate based on a Will, and then a later Will is found, they can be personally liable for bequests they have made that are mistaken.  If the Executor has obtained Probate, they won’t be liable.

Letters of Administration

If a person dies without a Will which is referred to as ‘Intestate’ OR if there is a Will and the Executor appointed in the Will is unable to perform the function of Executor and the Will made no provision for an alternative Executor, then a person, usually a next of kin, needs to be appointed by the Court to be the Administrator of the Estate. You do this by making an application to the Court for Letters of Administration. 

When you apply to the Court for Letters of Administration, you are asking to be validated and confirmed as Administrator of the Estate. The effect of Letters of Administration is the same as Probate. You are then able to perform the functions that an Executor would perform.  Also, third parties like Banks, Nursing Homes and the ATO will then deal with you and release funds/details to the Estate. 

Fees: How much does it cost to obtain a Grant of Probate or Letters of Administration?

Usually, the total cost for applying for a Grant of Probate or Letters of Administration is just under $4000. We usually require payment to our Trust Account and you are reimbursed these fees from the Estate when money is received.

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Breakdown of Fees

Probate or Letter of Administration - Total Cost - approx $4000.

Our Professional Fee starts at $3000 (inc gst)*

Filing fee (charged by the Court) - just under $800.

Advertising fee for the Qld Law Reporter - just under $200.

*If the matter is complex, more time will be needed to prepare documents for the Application and our fees may be a little more. We always advise of costs in advance of doing work so there are no surprises.

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How long does it take to get Probate or Letters of Administration?

This depends on how busy the Court is. If it is a straightforward matter, it can take anywhere between 4-10 weeks. Sometimes less time.  If the Estate is substantial and there are some complex issues, the process can take longer.