Where a person has died without a Will, or alternatively with a Will that does not meet the formal requirements, the person wanting to deal with the deceased estate is required to obtain a Grant of Letters of Administration from the Supreme Court of Queensland.

A person who obtains a Grant of Letters of Administration is “administrator” on behalf of the estate and is granted the right to deal with the estate of the deceased.

Entitlement to Apply for Grant of Letters of Administration

Rule 610 of the Uniform Civil Procedure Rules 1999 (Qld) provides for the rules of priority as to who is entitled to apply for a Grant of Letters of Administration.

Relevant, the descending order (on intestacy – meaning no valid Will) is as follows:

(a) the deceased’s surviving spouse;

(b) the deceased’s children;

(c) the deceased’s grandchildren or great-grandchildren;

(d) the deceased’s parent or parents;

(e) the deceased’s brothers and sisters;

(f) the children of deceased brothers and sisters of the deceased;

(g) the deceased’s grandparent or grandparents;

(h) the deceased’s uncles and aunts;

(i) the deceased’s first cousins;

(j) anyone else the court may appoint.

Am I required to obtain a Grant of Letters of Administration?

The requirement to obtain a Grant of Letters of Administration depends upon the nature and extent of a deceased persons assets.

Where there are minimal estate assets, or the assets are held jointly, a Grant of Letters of Administration may not be necessary. For example, where a husband and wife have jointly held real property, then the real property may fall outside estate law and be governed by the right of survivorship.

Consequently, where there shares, an aged care facility bond, or large sums of money held with financial institutions, then often a Grant of Letters of Administration will be required. So too if there is a major issue with a Will, or alternatively the formal requirements have not been met.

Steps to Apply for a Grant of Letters of Administration

There are many requirements to apply for a Grant of Probate and often it is complex and is governed by Part 2-4 of the Uniform Civil Procedure Rules 1999 (Qld).

As a rough guide, the process can fall into eight stages.

Stage One – Determining the Applicant

In Queensland, Rule 610 of the Uniform Civil Procedure Rules 1999 (Qld) provides that the rule of priority exists and when applying for Letters of Administration for matters of intestacy, the order is spouse followed by children of the deceased person.

In the event an entitled person is outside the jurisdiction, they will be entitled to appoint an attorney within the jurisdiction to whom the grant can be given.[1]

Once the administrator on intestacy is appointed, they are obliged to administer the estate according to law for the benefit of the beneficiaries, of whom he or she may be one. The entitlements of beneficiaries are set out in the intestacy laws as contained in the Succession Act 1981 (Qld).

Where there is no Will the Applicant for Letters of Administration are not required to establish priority for a person equal or lower than them in the order of priority.[2]

Persons who are entitled to executorship may renounce such executorship if they do not wish to be involved in the administration of the estate. In Queensland, such renunciation is final and the executor’s rights in respect of their executorship ceases wholly.[3]

Stage Two – Identify Details & Values of Liabilities and Assets

Once the Applicant has been determined, it is important that the assets and liabilities of the estate are established.

Stage Three – Steps Before Filing Documents

Before filing documents for Letters of Administration, a Will needs to be searched for and the consent of the person who wishes to be administrator needs to be obtained or there renunciation of the position.

Stage Four – Advertising the Notice of Intention to Apply for Grant

When applying for Letters of Administration, it is a requirement that a legal notice is advertised outlining the administrator’s intention to apply for Letters of Administration.[4]

Generally, it needs to include:

• The name and alias of the deceased

• The deceased’s last known address

• If a Will was left, the date of the Will

• The name and address of the solicitor for the Applicant

• The full name(s) of each Applicant for the grant

Generally, this is about advertising a Notice in the Incorporated Council of Law Reporting.

There is a requirement as to the form and content of a Notice of Intention to Apply for Grant under the Uniform Civil Procedure Rules 1999 (Qld).

Stage Five – Notification to the Public Trustee of Queensland

A person other than the Public Trustee proposing to apply for a grant must also give notice in the prescribed form 14 days prior to the intention to apply for the grant and must give the Public Trustee notice 7 days prior to applying.[5]

Stage Six – Time Requirements

Once the Notice of Intention to Apply for Grant is published in the Incorporated Council of Law Reporting, a person must wait 14 clear days to enable objections to the foreshadowed Application for a Grant of Letters of Administration.

Filing on the 15th day is permissible.

Stage Seven – The Application

When the Applicant is ready to apply for Letters of Administration, generally the following documents are required:

• Application

• Affidavit in Support of Application

• Original Death Certificate

• Death certificate of any other person with priority

• If there is a Will, the original plus one copy

• If there is a Will, and the executor is renouncing, then a Renunciation

• Affidavit of Publication and Service

• A copy of the Notice of Intention to Apply for Grant

Stage Eight – Filing The Application

Once the requisite documents have been properly completed, the documents can be filed by attending the Supreme Court of Queensland, or alternatively posting the documents. If postage is used, a pre-paid A4 express post envelope should always be included for return of the documents.

It is also crucial to ensure you have paid the relevant filing fees associated with the Application or have otherwise included a cheque payable if filing is completed by post.

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[1] Uniform Procedure Rules 1991 (Qld) r 611.

[2] Uniform Procedure Rules 1991 (Qld)  r 610. 

[3] Succession Act 1981 (Qld) s 46.

[4] Uniform Procedure Rules 1991 (Qld) r 599. 

[5] Uniform Procedure Rules 1991 (Qld) r 598.