QLD No Will - Is Probate Necessary?

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Tiana

Member
20 August 2014
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My uncle is recently deceased and left me, his neice the beneficiary of a small amount of super/death policy. He has no children or wife and does not own any property. He had no will. I need to know whether I have to go through probate? The only thing he owns is an old motor vehicle with a market value of $3000. The only debt i am aware of is a credit card debt of $9000.
 

Sarah J

Well-Known Member
16 July 2014
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Melbourne, Victoria
Hi Tiana,

Which State or Territory are you (or was your uncle) in?

Given that your uncle did not have a will, he is known as having "died intestate". Probates are not relevant here since they only apply to cases with wills.

Intestate matters can be difficult (appointment of an administrator by the Supreme Court and allocation of assets and identifying interested parties of the estate). However, it is possible to sort out matters without needing an administrator if the estate is quite small and all interested parties agree with who get what, or waives their interests. Sometimes, a bank or superannuation fund may need a letter from an administrator so you will need to go through this whole process. But if nobody is demanding a declaration from an administrator, then you might not need to go through all this as long as someone looks after your uncle's debts and interested parties agree with who gets what share of your uncle's assets.
 

Tim W

Lawyer
LawTap Verified
28 April 2014
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Sydney
Short answer - "Yes".
But if there is no will, then it's called an "intestacy",
and instead of a grant of Probate, you get "Letters of Administration"
Either way, yes, it has to happen.

Longer and more detailed answer -

In practical terms (based on questions people have asked me over time...)
  1. Lawyers often get asked questions in the line of
    "But it's a simple estate, he didn't have much, can't we just split up his things and move on?"
    Short answer is "no".

  2. If there is no will, then the intestacy rules in your state apply.
    Plenty of material about it on the web.
    This one is a good starter:
    http://www.legalanswers.sl.nsw.gov.au/guides/wills_estates/intestacy.html
    Do not rely on what somebody tells you happened with their friend's cousin's Aunty Beryl.
    There is a lot of misinformation and misunderstanding out there.

  3. Yes, somebody will have to do all the stuff with registering the death, settling any debts,
    sorting out Centrelink and the ATO etc.
    In NSW, for an intestate deceased, this person is called the "Legal Personal Representative".
    They are appointed by the Supreme Court, and there is a document called "Letters of Administration".
    LoA is equivalent to Probate (but you only get Probate if there is a valid will).
    LoA is the LPR's authority to act (eg to close a bank account, or sell a house, or even recover a rental bond, and, importantly, to distribute any assets).

  4. Until the work in item (2) above is complete, nobody else can come in and take any of the deceased's "things".
    The LPR is not allowed to distribute until all the other Administration is complete.
    It follows then that a person who, for example, takes an item from the deceased's home
    can in fact (and at law), stealing it.
    This can be the case no matter what the value, no matter who was supposedly promised what,
    and no matter what people say the deceased said.

  5. In purely technical terms, intestacies can be straightforward
    (which, yeah, I accept, is "easy" for us lawyers to say!).
    But they can also bring out... difficulties... in the family dynamic
    that could perhaps be avoided.
    You may find it better to engage a solicitor, or to seek the advice (in NSW)
    of the Public Trustee and Guardian.
    Fees can be payable, but can often be recovered from the estate.
 

Tiana

Member
20 August 2014
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Thankyou for your reply. My uncle lived in Qld.I am currently arranging an appointment with legal aid so I hope to rectify this situation as soon as possible, and hopefully as cheaply as possible. It looks like my next step is to obtain a LOA
 

Tiana

Member
20 August 2014
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Just sought initial consultation with solicitor this morning and he's predicting it may cost several thousand dollars to obtain LOA and finalise my uncle's limited estate. I'm blown away by this cost, is there no other way to obtain the LOA?
 

Tim W

Lawyer
LawTap Verified
28 April 2014
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Sydney
Shop around.
Much depends on the complexity of the estate and the amount of work involved,
but certainly, shop around.
 
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Tiana

Member
20 August 2014
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When there is a death policy attached to a superannuation policy ( and the deceased has named a beneficiary) and the deceased has debts, do major institutions who are owed money by the deceased such as a credit card/banks/phone companies have access to the death policy or only the actual superannuation and personal possessions? Will a solicitor's fee be based on a percentage of the deceased's estate/super?
 

AdValorem

Well-Known Member
20 August 2015
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Perth
Hi Tiana

Superannuation benefits paid to the estate of a deceased person are "protected estate" and should not be applied to pay estate liabilities.

If the superannuation death benefit is paid directly to a named beneficiary then this payment does not form part of the estate of the deceased and will not be available to pay estate liabilities.

Please follow this link for the relevant legislation.
The outcome may be different if the life insurance proceeds have been made available in the will to pay debts.

The solicitor may charge a fee based on the work required to complete the administration of the estate but not a fee based on a percentage of the estate/super.

See section 68 of the Succession Act 1981 for more details.