Estates
This comprehensive and practical guide assists practitioners to advise and act for clients in all types of estate matters.
An application for probate or letters of administration can be made with ease and confidence. The guide features detailed commentary and all necessary forms and precedents for obtaining a grant, getting in assets and making the distribution. Deeds of release and indemnity and deeds of family arrangement are included.
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Guides in this publication
MATTER PLAN
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“ Commentaries ”
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“ Generally2 Advance health directives3 ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a solicitor charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily regulated ... ”
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“ Nature of disclosure1 Timing of disclosure2 ”
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“ Costs disclosure is not required in relation to certain clients, described in the legislation as ‘sophisticated clients’ or ‘government or commercial clients’ as defined by the relevant legislation to include clients such as lawyers, law firms, public companies, liquidators and government entities. ... ”
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“ Cost agreements are not always required although clearly as between the practitioner and their client there will be disclosure but without the need for formal compliance with the regulation. The limits are: ”
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“ In NSW & VIC there is a standard costs disclosure for fees under $3,000 which is included in the precedents. If the total legal costs in a matter (excluding GST and disbursements) are not likely to exceed $3,000 (the higher threshold), a law practice may, instead of making a disclosure under ... ”
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“ Knowing that clients are disinclined to read, sign and return cost agreements, the letter sending them usually provides that unless heard to the contrary the practice will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many practitioners ... ”
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“ Costs are remuneration for professional work when acting in the capacity of a barrister or solicitor. Payments to a practitioner for work which is not professional work, are not costs. Disbursements are payments made, or liabilities incurred in the course of practice and which the practitioner is ... ”
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“ Firms are required to provide an estimate of the total of costs, excluding GST and disbursements, and information on the impact of any significant change to these costs. A law practice must take all reasonable steps to satisfy itself that the client has understood and consented to the proposed ... ”
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“ What is a disbursement Disbursements are payments made, or liabilities incurred in the course of practice, and which the practitioner is bound to pay whether put in funds by the client or not; or payments which, by established custom and practice of the profession, the practitioner is bound to pay. ... ”
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“ A lawyer may request money on account of fees be paid into a trust account before the commencement of work. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. The funds may cover legal fees as well as disbursements and the ... ”
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“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month. ”
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“ A lump sum invoice is one which sets out a recital describing the legal service provided and a total amount. An itemised invoice is one which sets out in detail each of the legal services provided, the date they were provided, and the cost for each service. An itemised invoice allows for an invoice ... ”
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“ A law practice cannot charge for the time spent in preparing an invoice. A law practice cannot charge for the time spent in preparing an itemised invoice for a client who has already received a lump sum invoice. ”
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“ All bills should be accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute and any time limits that apply to the taking of such action. Under the uniform law in NSW and VIC each bill or covering letter must be signed by a principal of the ... ”
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“ In 1991 the Australian Competition and Consumer Commission released guidelines to assist businesses in the withdrawal on one and two cent pieces. In the purchase of goods or services for cash, businesses were advised to round the final payment: ”
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“ – When to charge and how to charge Goods and Services Tax (GST) is a broad-based tax of 10% applied to most goods and services, including legal services. Businesses are required to register for GST if their turnover exceeds the $75,000 threshold. If turnover is less than $75,000 than registration ... ”
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“ Reducing fees can create good will but needs to be handled with care as some take offence to the implication that they cannot afford to pay for the work they have retained. It is also a hard won reality that comes from experience that people are inclined not to value any advice given for free. ”
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“ Credit terms are quite common and need to be clearly documented and administered. ”
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“ Notification of rights is a requirement in all states and is found in all example invoice precedents. If the client has not been advised of their rights in a costs agreement, then practitioners must advise the client of their rights at the time of issuing the invoice. ”
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“ Monthly accounting for work in progress is recommended in order to achieve target lockup days. If debtors are not followed up promptly cash flow reduces making it imperative to adopt a debtor’s policy for effective debtor control. All overdue accounts must be followed up promptly and repeatedly. ”
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“ Termination When a retainer is terminated before completion a lawyer may claim costs for the work done to the date of termination on a quantum meruit basis if: ”
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“ Sound financial management is absolutely critical to the success of the law practice. There is a high correlation between practices with poor financial management and increased probability of experiencing professional negligence claims. The link is clear. Principals, who do not manage their ... ”
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“ Methods of payment include: Credit card; ”
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“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”
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“ Lawcover recommends that practitioners use the cost assessment scheme to recover costs. Instituting proceedings against a disgruntled client who refuses to pay an outstanding bill exposes practitioners to the risk of a cross-claim in negligence being filed. The advantage of the cost assessment ... ”
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“ Other states For more information on similar procedures that exist in some other states, see: ”
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“ y trusts? For clients with substantial assets, complicated families or family members who have medical or personal problems, the use of testamentary trusts has multiple benefits over usual wills, summarised below. ”
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“ Wills and estates (probate) - Supreme Court of Queensland The Office of State Revenue - Office of State Revenue ”
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“ Family Provision Claims (QLD) Wills, Powers of Attorney and Advance Health Directives (QLD) ”
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“ The types of grants that may be sought include: A grant of probate. Where the deceased has a will appointing an executor who is willing and able to apply for probate. ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ Remains and funeral wishes It is not uncommon for a testator to give directions in a will in relation to funeral arrangements or to express a wish in relation to organ donation. Whilst these directions are normally known to the family, it is prudent to view the will at the earliest opportunity. ”
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“ Of note: Where the firm is to act for multiple parties – that is, a number of administrators – it should always be pointed out that the firm cannot act or continue to act where there is a (material) conflict of interest. ”
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“ ? There is no statutory requirement to obtain a grant. Most banks and financial institutions however will require a grant if the amount they hold for the deceased is more than $10,000. In these circumstances they will normally accept evidence of death, entitlement and signing of indemnities by the ... ”
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“ Funeral expenses In order to pay a person’s funeral expenses most banks will allow funds to be withdrawn from the estate before a grant is obtained. ”
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“ What is an administrator? An administrator is a person appointed by the court to administer a deceased person’s estate if no executor has been appointed by the will, or in case of an intestacy. ”
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“ If an executor refuses to prove the will, or renounce, then the other executors, if any, apply for probate. If all executors are deceased or renounce then another interested party must apply for administration, with the will annexed, provided the executor has been cited pursuant to rule 637 of the ... ”
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“ The ending of a testator’s de facto relationship or civil partnership revokes: an appointment made by the will of the former de facto partner/civil partner, as an executor, trustee, advisory trustee or guardian; ”
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“ Estate taxes Taxation generally ”
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“ Who is a beneficiary? A beneficiary is a person or entity to whom a bequest is made in a will. However, for the named person to be a beneficiary, both the will and the bequest must be valid. It is incumbent upon an administrator to establish the validity of the will and then to administer the ... ”
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“ Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. ”
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“ When a challenge to a will or to an entitlement to letters of administration is contemplated, it is necessary to put the court on notice of the proposed challenge. The caveat is in force for six months but may be renewed for six months by filing a new caveat: UCPR 624. ”
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“ It is important to consider if the cause of death gives rise to any compensation or damages, for example, death as a result of a motor vehicle or work accident. See the Motor Vehicle Accident or Workers Compensation guides for more information. Simultaneous deaths ”
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“ Advertising The advertisement must appear at least 14 days before the filing of the application. The notice must be published in the Queensland Law Reporter – a publication approved by the Chief Justice under Practice Direction 14 or 2017, pursuant to rule 599(2) of the Uniform Civil Procedure ... ”
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“ Advertising The advertisement must appear at least 14 days before the filing of the application. The notice must be published in the Queensland Law Reporter – a publication approved by the Chief Justice under Practice Direction 14 or 2017, pursuant to rule 599(2) of the Uniform Civil Procedure ... ”
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“ Assets held in Queensland normally require a grant of administration in Queensland in order to deal with them. However where a testator has assets in more than one jurisdiction and a grant has already been made in another jurisdiction it may be possible to obtain a ‘reseal’ of that original grant ... ”
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“ An administrator is entitled to receive such remuneration or commission for their services as personal representative as the court thinks fit: s 68 Succession Act 1981. If a commission is to be sought, the application to the court is made under r 646 Part 10 Uniform Civil Procedure Rules 1999. ... ”
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“ In practice the commission is usually agreed between the personal representative and the interested beneficiaries. As the commission payable to the personal representative for the administration of the deceased estate is a testamentary expense, the interested beneficiaries are those parties that ... ”
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“ The costs associated with any application should always be considered before filing, particularly in the Supreme Court. To avoid the costs associated with the formal application, it is in the beneficiaries’ interests for the executor and beneficiaries to come to an agreement as to commission ... ”
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“ Immediately after appointment as administrator, and if not included in the Notice of Intention to Apply, the administrator should advertise the Statutory Notice to Creditors: s 67 Trusts Act. A precedent notice is on the matter plan. The Statutory Notice to Creditors is to be advertised in a ... ”
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“ Depending upon the nature of the estate and the sophistication of the legal personal representatives, some administrators may wish to deal with administration themselves, setting up an interest bearing estate account to consolidate funds before distribution, and so on. This will also be the case ... ”
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“ VOI ”
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“ The Duties Act 2001 provides an exemption from transfer duty where dutiable transactions are made to the extent that it gives effect to a distribution in the estate of a deceased person See DA 124.1.1. Duty on motor vehicles ”
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“ A request to record death will be necessary to transfer any jointly owned property to the surviving proprietor. Property owned solely by the deceased or as tenants in common may need to be transferred into the administrator’s name. A transmission application should be lodged and the administrator ... ”
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“ The foreign resident capital gains withholding payments provisions of the Taxation Administration Act 1953 came into force on 1 July 2016 and were amended on 1 July 2017. Essentially, when a property with a market value of $750,000 or more is transferred, the transferee is required to withhold ... ”
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“ Prior to preparing a deed of family arrangement, some research must be carried out to ensure a client is advised of all the potential consequences, including the implications and requirements of any applicable taxation or duty issues, and the effect on any duty exemptions which might otherwise ... ”
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“ As a general rule all of the property of the deceased is available to pay the debts of the estate including funeral costs, other testamentary expenses and any other debts which have been incurred. The personal representative’s most significant duty in administering the deceased’s estate is to pay ... ”
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“ Succession to realty is governed by the law of the location of the realty, lex situs, and movables by the law of the domicile of the deceased, lex domicilii. Part 3 of the Succession Act 1981 deals with intestacy. ”
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“ Specific gift ”
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“ There are no mandatory legal fee scales for estate matters in Queensland. Fees should be agreed and disclosed via a client service agreement and disclosure notice. Lawyers may wish to charge the scale rate set out in Schedule 1 of the Uniform Civil Procedure Rules 1999. In the absence of a client ... ”
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“ Keeping proper accounts Administrators should be aware of r 648 Requirements of estate accounts Uniform Civil Procedure Rules 1999 and the necessity to maintain complete and accurate administration records. ”
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“ The administrator should consider whether any actions are still on foot, in respect to which the decision of Stanford v Stanford [2012] HCA 52 is noted. See also r 71 Defendant or respondent dead at start of proceeding Uniform Civil Procedure Rules 1999 (Qld). Any orders or binding agreements made ... ”
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“ Depending on the circumstances of the estate it may be appropriate to make an interim distribution to the beneficiaries of part of their entitlement. Keeping in mind s 44 the executor should only do so if they are certain that the estate retains sufficient funds to cover all liabilities and the ... ”
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“ The included sample letters are basic in design, and will need to be adapted to suit the particular situation. Even where a formal administration account is not necessary in the circumstances of the matter, it is suggested that preparation of a distribution statement will be of benefit to ... ”
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