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.
Recent publication updates can be viewed on Obiter - our blog.
Guides in this publication
MATTER PLAN
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“ Contents Overview3 ”
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“ Queensland A full commentary on the law and practice as it currently applies to estates and in particular probate applications. ”
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“ This information is included for research and educational purposes only. The interpretation of these cases is that of the author, and the lawyer should read the complete judgment to ascertain whether a particular case may be relevant to the issue before the lawyer. It needs to be appreciated that ... ”
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“ y trusts? For clients with substantial assets, or complicated families, or family members who have medical or personal problems, the use of testamentary trusts have multiple benefits over usual wills summarised below. ”
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“ A number of recent cases have highlighted the need for care where executor’s commission is sought by a ‘professional’ executor such as a legal practitioner, in particular where the will makes no specific provision for the payment of commission. A useful starting point for a discussion of a claim ... ”
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“ Lawyers face difficulties as regards charging costs and/or commission when acting as a lawyer to, and executor of, a deceased estate. Traditionally lawyers practising in all but large city firms would dabble in property law and wills & estates. ”
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“ Most property lawyers will also be involved in the administration of deceased estates and, on occasions, may in fact act as the executor of a deceased estate. This is entirely appropriate, as there will always be clients who do not have a close friend or relative who they can appoint to fulfil ... ”
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“ Every case of course turns on its own facts, but two recent cases, and an ageing population, highlight the need for consideration of a number of issues when agreeing to take on a new wills matter. Fischer v Howe [2013] NSWSC 462 1 ”
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“ Death can impact on a conveyancing transaction in a number of ways, whether the death occurs prior to commencement or during the course of the transaction. Survivorship ”
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“ Article by Rosslyn F. Curnow Nolch, Principal, Rosslyn Nolch Solicitors, 2017. Amendments to the Powers of Attorney Act 2014 (Vic) will be made by the Powers of Attorney Amendment Act 2016 (Vic) which has now received royal assent. The latest default implementation date is 1 May 2017. One of the ... ”
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“ This article first appeared in The Legal Executive September-October 2014 issue. It is a brief summary of planned changes to succession laws in Victoria, which have triggered media comment such as the Herald Sun article, Experts fear planned changes to estate laws will encourage ‘gold diggers’. ... ”
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“ The purpose of this article is to outline the general scope and requirements of the various Powers of Attorney which may be made pursuant to the Powers of Attorney Act 2014. It by no means includes all of the matters covered by the Act. ”
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“ In the preceding article Succession laws in Victoria - Forthcoming changes we reported on the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014, and noted that at the time of preparing the article it was uncertain whether the Bill would be passed, or passed in its then current ... ”
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“ Note: This outline represents the interpretation of the author, is provided for educational purposes only, and does not constitute legal advice. For a more detailed understanding, the reader must analyse the reports for him/herself. There have been two recent inquiries into matters relating to ... ”
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“ Wills and estates (probate) – Supreme Court of Queensland Taxes, royalties & grants - Office of State Revenue ”
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“ Family provision claims (QLD) – Legal Guide and Precedents Wills, Powers of Attorney and Advance Health Directives (QLD) - Legal Guide and Precedents ”
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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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“ Cause of death 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 Workers Compensation guide for more information. ”
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“ Of note: Where the firm is to act for multiple parties (i.e. a number of executors or 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 will not insist on a grant if the amount they hold for the deceased is less than $50,000. 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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“ If an executor refuses to prove the will, or renounce, as may happen if a benefit enjoyed by the executor will be lost if the will is followed, then the other executors, if any, can apply for probate, or any interested party may apply for administration, with the will annexed provided the executor ... ”
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“ If an executor appointed by a will does not wish to proceed in the role, they must sign a renunciation, which is then filed with a subsequent application for grant for probate or letters of administration. Where there are no remaining executors named in the will the appropriate person applies for ... ”
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“ Estate taxes and duties Taxation generally ”
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“ Attesting witness A gift to an attesting witness is void unless one of the exceptions in section 11 applies: s 11 When an interested witness may benefit from a disposition Succession Act 1981. ”
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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 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: r 624 Uniform Civil Procedure Rules 1999. ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ An indemnity clause provides that the indemnifier will pay liabilities incurred by the indemnified party as a result of performance of the contract. For example, a principal may indemnify their agent for any liability incurred while carrying out their duties. Indemnity clauses are often included ... ”
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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 Workers Compensation guide for more information. Presumption of death ”
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“ Advertising The advertisement must appear at least 14 days before the filing of the Application. The Notice of Intention to Apply for Grant must be published in: ”
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“ Assets held in Queensland normally require a grant of probate 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 rather ... ”
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“ An executor is entitled to receive such remuneration or commission for their services as personal representative as the court thinks fit: s 68 Succession Act 1981. Services performed as a trustee may be remunerated pursuant to section 101 of the Trusts Act 1973. An order for commission is a ... ”
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“ In practice the award of 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 ... ”
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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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“ Depending upon the nature of the estate and the sophistication of the legal personal representatives, some executors 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 where ... ”
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“ Contents ”
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“ The Duties Act 2001 (Qld) 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. Superannuation death benefits ”
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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 will need to be transferred into the executor’s name. A transmission application should be lodged and the executor can then ... ”
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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. Essentially, when a property with a market value of $2 million or more is transferred, the transferee is required to withhold 10% of the purchase price and ... ”
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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 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 executor must not unnecessarily diminish the estate by paying claims they are not bound to pay and ... ”
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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 Executors 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 executor should consider whether any actions are still on foot, in respect to which the recent 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 ... ”
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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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