Guide to Letters of Administration in Queensland

Introduction to Letters of Administration

What is ‘Letters of Administration’?

A Grant of Letters of Administration is required where someone has passed away without leaving a Will. This is known as ‘dying intestate’.

Letters of Administration is the approval granted to the deceased’s closest living next of kin (the Administrator) by the Supreme Court, allowing the Administrator to administer the deceased’s estate in accordance with the laws of intestacy. The laws of intestacy in each State set out who can apply for a Grant of Letters of Administration, and who inherits the estate, where there is no Will.

If the deceased left a Will, then the correct application would be for a Grant of Probate, rather than Letters of Administration.

Who can apply for Letters of Administration?

In Queensland, to apply for a Grant of Letters of Administration you must be the deceased’s most of kin (i.e. their closest living relative). The hierarchy of next of kin, who are eligible to apply for a Grant of Letters of Administration, is identified in the following order:

• The deceased’s spouse (husband, wife or de-facto partner with whom the deceased has been in a relationship with for at least two years);
• The deceased’s children, including adopted children but excluding stepchildren;
• The deceased’s grandchildren or great-grandchildren;
• The deceased’s parents;
• The deceased’s siblings;
• The deceased’s nieces and nephews;
• The deceased’s grandparents;
• The deceased’s uncles and aunts;
• The deceased’s first cousins; or
• Anyone else the court may appoint.

Each category of next of kin must be exhausted before moving to the next level of the hierarchy.

Why do I need Letters of Administration?

In most cases, without a Grant of Letters of Administration, the deceased’s next of kin will be prevented from accessing and managing the assets of the estate (i.e. bank accounts, share accounts, property and other assets).

Occasionally, the deceased’s next of kin will not require Letters of Administration to access and distribute the estate’s assets, but a Grant is normally required. Letters of Administration may not be required in the following situations:

• All assets owned by the deceased were held as joint tenants (also known as joint proprietors)
• The estate has minimal assets (this depends on the organisation, and is usually considered on a case-by-case basis)
• If there is a Will (if this is the case, a Grant of Probate would be required)

What is my role as Administrator?

If you are the deceased’s next of kin and are applying for a Grant of Letters of Administration, you should be prepared to take on significant responsibilities in relation to dealing with the estate.

It is the Administrator’s responsibility to administer the estate. If there is more than one eligible next of kin, then all eligible next of kin should apply to be appointed as Administrators. If an eligible next of kin does not wish to apply, they will need to provide their written consent to the other eligible next of kin allowing them to apply without them.

As an Administrator, you will generally be required to:

• Organise and carry out funeral arrangements
• Obtain a death certificate
• Identify all eligible beneficiaries entitled to inherit pursuant to the laws of intestacy in QLD
• Notify utility providers and financial institutions of the death
• Redirect post and contact financial institutions to put a halt on any direct debits
• Find and contact beneficiaries, and keep them updated on the estate administration process
• Contact financial institutions, service providers and government agencies to validate the deceased’s assets and liabilities
• Create an inventory of the estate including cash, real estate and securities, insurance policies, superannuation, outstanding work entitlements and any personal and household effects
• Keep records of any financial and administrative transactions incurred during the estate administration process
• Provide a distribution report to each beneficiary
• Gather important documents and fill out the paperwork to apply for a Grant of Letters of Administration with the Supreme Court
• Pay off any debts, taxes and other expenses incurred for burial or funeral arrangements
• Distribute the remainder of the estate to beneficiaries including paying legacies, establishing testamentary trusts, and bequeathing gifts or donations
• Prepare account and tax information for beneficiaries after Letters of Administration is granted

You can review a detailed list of tasks traditionally required of an executor by downloading our complimentary Executor Checklist.

Do I need a lawyer to apply for a grant?

There is no requirement that you use a lawyer to apply for Letters of Administration, and there are online resources that can help guide you through the process.

Most people, however, choose to use a lawyer because it is a technical legal process that can be complex, and if not done correctly could result in personal liability for the Administrator. Because of this, it is generally recommended to engage a lawyer for advice.

As part of preparing and lodging a Letters of Administration application, you will be required to swear or affirm an Affidavit and may require certified copies of documents. These are services that most lawyers offer as part of their Letters of Administration service and can help make the process of applying for Letters of Administration less complicated.

What if there is a Will?

If there is a Will, you may still need to apply to the Supreme Court for authority to deal with a deceased person’s assets. If you have located a Will made by the deceased, then you will be required to apply for a Grant of Probate, rather than a Grant of Letters of Administration.

Please visit our QLD Guide to Probate to find out more about the process of applying for Probate.

Steps required for Letters of Administration

The process of obtaining Letters of Administration requires the deceased’s closest living next of kin to make an application with the QLD Supreme Court, and generally involves publishing an online notice and lodging a set of documents with the Court. The Court will review the documents and if all the information has been correctly prepared, the Court will make a Grant of Letters of Administration.

Locate important documents and information

As explained above, it is the Administrator’s role to obtain a death certificate, and contact financial institutions, service providers and government agencies to validate the deceased’s assets and liabilities.

These documents and important pieces of information will all be required for the Letters of Administration application. You should not lodge a Notice of Intended Application until you are in possession of the original death certificate.

As part of applying for Letters of Administration, you will be required to identify all eligible beneficiaries of the estate pursuant to the laws of intestacy in QLD. As part of this, you may require copies of death certificates for any beneficiaries who have predeceased the deceased, and/or birth certificates for any surviving children of beneficiaries who have predeceased the deceased.

Lodge a Notice of Intended Application

A Letters of Administration Advertisement publicises your intention to apply for a Grant of Letters of Administration on the basis that you are the deceased’s closest living next of kin. It also provides any creditors of the deceased with an opportunity to make their claims on the estate known to the Administrator.

The Notice should be prepared in line with the court-approved Form 103 – Notice of Intended Application for a Grant of Letters of Administration.

The Notice is published in the Queensland Law Reporter (QLR) and the fee for publishing the Notice is $161.70 (as at time of publication). The QLR is published every Friday, and the cut-off for being in the next edition is the Monday prior.

The relevant legislation requires that the Notice be published at least fourteen (14) days before an application for a Grant of Letters of Administration is made by the Administrator. This 14-day Notice period commences from the Friday the Notice is published in the QLR, not the day that it is submitted to their office.

Once the Notice is published in the QLR, a copy must be sent to the Public Trustee via email for their records.

Identify assets and liabilities

As explained above, it is the Administrator’s responsibility to create an inventory of the estate including cash, real estate and securities, insurance policies, superannuation, outstanding work entitlements and any personal and household effects.

In QLD, there is no requirement to file an Inventory of Assets and Liabilities as part of the Letters of Administration application. However, you will require details of the deceased’s assets when it comes time to administer the estate.

Court application

Required forms

The forms required for a standard Letters of Administration application in QLD (where there is no Will) are as follows:

• Form 102 – Application for Letters of Administration on Intestacy
• Form 104 – Affidavit of Publication
• Form 109 – Affidavit Supporting Application for Letters of Administration (no Will)
• Form 47 – Certificate of Exhibit (required for each annexure)

The forms required for a standard Letters of Administration application in QLD (where there is a Will, but no available Executors to apply) are as follows:

• Form 101 – Application for Letters of Administration with Will
• Form 104 – Affidavit of Publication
• Form 106 – Affidavit Supporting Application for Letters of Administration (with Will)
• Form 47 – Certificate of Exhibit (required for each annexure)

It is important that you take great care when preparing these documents, or when reviewing them if they are prepared by a lawyer.

In particular, you need to pay close attention to the Affidavit Supporting Application for Letters of Administration. When you sign an Affidavit, you are swearing or affirming the truth of its contents. As such, you must carefully review and approve the document before signing it. If you do not agree with something in the Affidavit (or any of the documents), you should contact your lawyer so the document can be amended accordingly.

Signing appointment

Only an authorised witness can witness you sign your Affidavit. Authorised witnesses include:

• Lawyers
• Barristers
• Notary Publics
• Justices of the Peace

You should pay careful attention to the instructions provided to you for signing the Letters of Administration application. Most errors with Letters of Administration applications arise in the signing of the documents because people do not follow the instructions provided.

Estate lawyers, such as the team at Safewill Legal, specialise in the preparation and signing of Letters of Administration applications. If you engage a Letters of Administration lawyer, you can feel confident that your application has been prepared and signed properly and in accordance with the relevant legislation and rules.

Filing fee

In QLD, the court filing fee is fixed at $766.80 (as at time of publication). This fee does not change depending on the value of the estate.

The court filing fee can be paid by credit card over the phone, directly with the Supreme Court. When lodging the application, instructions should be provided to the court regarding who they should call, and on what telephone number, to obtain payment.

Alternatively, you may include a bank cheque for the sum of $766.80 with the application, made out to the “Department of Justice and Attorney-General”.

Lodgement

Once the documents have been signed, you will need to collate the documents for lodgement:

• Original signed Form 101 or Form 102 (as applicable) – Application for Letters of Administration
• Original signed Form 106 or 109 (as applicable) – Affidavit Supporting Application for Letters of Administration
• Original signed Form 47 – Certificate of Exhibit for Annexure A, with the original death certificate attached
• Original signed Form 47 – Certificate of Exhibit for all other relevant annexures (such as copies of death certificates for any predeceased next of kin), with the copy of the annexure attached
• Original signed Form 104 – Affidavit of Publication
• Original signed Form 47 – Certificate of Exhibit for Annexure A, with a copy of the QLR Notice attached

Time frame

It normally takes the QLD Supreme Court 4 weeks to review the application and make a Grant of Letters of Administration.

If there are any issues with the application, or if further information is required, the court will send you a requisition. A requisition is a request for further information or documentation. Most requisitions can be resolved in a straightforward manner.

Obtain the Grant

Once your application is approved by the court, you will obtain a formal Grant of Letters of Administration.

The Grant will be a document issued by the court bearing the court’s seal. If you applied for a Grant of Letters of Administration with the Will annexed, then the Grant will include a copy of the Will.

Administer the estate

Open estate bank account

In most situations, an Administrator may need to set up a bank account in the name of the Estate to fulfil their duties. To set up an estate bank account, the bank will likely require certified copies of the Grant of Letters of Administration and death certificate.

As assets of the estate are redeemed and accounts closed, you should have the funds from these accounts paid into the newly established estate bank account. This will assist with record-keeping and helps ensure that no funds are misappropriated for personal use (either by mistake or intentionally).

Estate tax return

Depending on the assets of the estate, and how they are being dealt with in the administration of the estate, an estate tax return may be required.

It is recommended that you engage an Accountant to assess whether an estate tax return will be required, and if so, to prepare the relevant paperwork for lodgement with the Australian Tax Office.

Arrange payment of liabilities

The Administrator is responsible for arrangement the payment of outstanding funeral and estate expenses, as well as any outstanding debts or liabilities of the deceased (including tax liabilities). These amounts can be paid from the estate bank account.

It is important to note that all liabilities and estate expenses must be paid before funds can be distributed to beneficiaries.

Distribute the estate

In Queensland, it is highly recommended that you do not distribute any estate assets to beneficiaries until the expiration of six (6) months from the date of death. During this period, creditors of the estate or eligible persons who wish to commence a family provision claim, should come forward.

If this six (6) month period is not observed, and an Administrator distributes the estate too early, they may be personally liable to satisfy any outstanding estate liabilities and debts.

Once the six (6) month period has expired, all liabilities and estate expenses have been paid (and on the assumption no creditors have come forward, and no one has commenced a family provision claim), you may arrange to distribute the residuary estate to the beneficiaries named in the Will.

If there is an estate property to be transferred to a beneficiary (or beneficiaries), you will need to engage a property lawyer or conveyancer to complete the relevant transfer paperwork. Alternatively, it may be that you and/or the beneficiaries decide that the property should be sold. In this case, the proceeds of sale of the property would be distributed to beneficiaries in accordance with the Will.

Depending on the assets of the estate, there may be a need to engage other professionals to assist you in dealing with and distributing the assets of the estate. If you are unsure of any aspect of administering the estate, it is best to obtain legal advice.

End of matter

Once Letters of Administration is granted, all liabilities of the estate have been paid, and all assets of the estate have been distributed, your role as Administrator will cease. However, it is important that you retain all documents and information relating to your administration of the estate somewhere safe in case they are ever required again.