This is something we encounter quite a lot from people who believe, for whatever reason, that they are entitled to read or obtain a copy of a Deceased person’s Will.
But who is actually entitled to do so? The answer lies in Section 33Z of the Succession Act. Section 33Z (1) (a) says that only an entitled person can inspect a deceased persons Will.
So who is an entitled person? Again we need to go to Section 33Z(4) of the Act which states that an entitled person is either of the following:
(a) a person mentioned in the Will, or mentioned in any earlier Will as a beneficiary; or
(b) is a spouse, parent, or child of the Testator; or is a person who would be entitled to a share of the Estate if the deceased had died intestate; or
(c) a parent or guardian of a child mentioned in the Will or who would be entitled to a share of the Estate if the Testator had died intestate; or
(d) a creditor or other person who has a claim against the Estate.
What is a testamentary trust?
It’s also worthwhile mentioning that you can create a testamentary trust (you can also create more than one of these trusts) and nominate a trustee to oversee the distribution of your capital and assets, via this trust. The trustee can also be a beneficiary of your Will, but this isn’t necessary. As a trustee of your testamentary trust, they are also entitled to read your Will.
So if you are named as an Executor of a Will and someone demands to read or obtain a copy of the Will, first make sure they are entitled to do so.
Should you wish to discuss any matters regarding the matters raised in this article please contact Mr John McLaughlin of McLaughlin & Associates on 3808 7777.
Who or what is an executor of an estate?
An executor of an estate is responsible for carrying out the wishes of the deceased person. Essentially, they manage the estate according to the outline of the Will. For example, the executor of estate can organise the funeral, locate and identify the Will, apply to the Supreme Court for probate, determine the beneficiaries, inventory, value and collect all assets, pay insurances on assets, pay any outstanding debts, manage accounts, prepare and lodge tax forms, defend the estate against claimants and distribute the assets according to the Will.
If there are any mistakes made by the executor of an estate in administering the estate, they can actually be liable for the financial losses to the estate, for example, where insurances have not been paid and fire burns down a building (which is an asset of the deceased). You can however, refuse to be named as an executor of an estate and ask the Public Trustee to administer the estate. Once you accept the responsibility however, it is often difficult to remove yourself from the role, but it can be done.
Preparing your Will
Here are a few ways that we at McLaughlin & Associates can help you in preparing your Will:-
- Make sure your Will is valid – that is, properly drawn up, correctly signed and witnessed.
- Make sure your wishes are clearly set out.
- Make sure that you have made adequate provision for your spouse and children, including who should be legal guardian of your children.
- Advise you on choosing an Executor, Trustee and Guardian.
- Discuss relevant Tax Laws.
- Advise on the possibility of claims against your estate and avoid or limit disputes between remaining family members.
- Avoid the problems with intestacy – the imposition of a State appointed Administrator applying pre-determined rules to the disposition of your assets.
- Keep you Will in safe custody free of charge.
Estate planning lawyer definitions
As an estate planning lawyer, we will help you to write your Will, however below you will find a number of definitions that you need to understand.
Testator: The person making the Will.
Testamentary capacity: Refers to the mental capacity of the testator to make a Will. The Testator must be of sound mind and at least 18 years of age.
Executor: The person appointed in a Will to manage the administration of the Testator’s estate. The executor must be 18 years of age, although does not need to have any formal qualification to perform this role.
Estate: All of the assets and liabilities of the Testator as at the date of death. As to what constitutes a Testator’s assets can be quite complex (as an estate planning lawyer, we can help you with this aspect of your Will). For example, superannuation and life insurance policies do not necessarily form part of the estate. Property which is owned with another, as joint tenants, does not form part of the estate, neither does property belonging to a Trust or company, although monies owed to the deceased in a loan account of a trust or company and the shares owned by the deceased in a company do form part of the estate.
Administration of Estate: It is the Executor’s role to identify all assets and liabilities of the estate, collect the assets and pay the liabilities before distributing amongst the beneficiaries named in the Will.
Beneficiaries: The persons named in the Will who will receive a distribution from the Estate.
Death Duties: Are not currently paid in Queensland but may be payable in other states.
Intestacy: Occurs when a person dies without leaving a valid Will. Where this occurs a person is said to have died “intestate”. In these cases the assets are distributed in accordance with Schedule 2 of the Succession Act (Qld) depending upon the Testator’s circumstances at the time of death.
Family provision: A Testator’s spouse child, step-child or dependant may make an application to the Supreme Court for further provision to be made from the Testator’s estate even if they have already been provided for in the Will.
Spouse: Includes a husband, wife, de-facto partner or a former husband, wife or de-facto partner.
Child: Includes any biological child, step-child or adopted child of the Testator. The step-child ceases being a child upon the divorce of the Testator and the child’s parent.
Dependant: Any person who is being wholly or substantially maintained or supported by the Testator at the time of their death. This can include a parent of the Testator, a parent of a surviving child under the age of 18 years of a person.
Grant of Probate: The Supreme Court makes an Order that the Will is the last Will of the Testator. In a lot of cases a bank or financial institution will require a Grant of Probate before releasing monies to the Executor.
Letters of Administration: Where a person has died intestate or if there is a Will but no executor, an application is made to the Supreme Court for Letters of Administration which will allow for distribution of the Estate.
Waiting Periods: There are several waiting periods in the administration of the Estate:
- The Death Certificate can take up to six weeks from the date of death to be issued;
- Any person who has not been named in the Will and intends to make a claim on the Estate must give notice to the Executor within six months of the date of death;
- For that reason it is recommended that the Estate is not distributed until nine months has passed from the date of death to ensure the Estate can meet payment of any claims;
- Where an executor needs to apply for a Grant of Probate of Letters of Administration, notice of the intended application must be advertised at least 14 days before the application is filed in the Supreme Court;
- A copy of the Notice must be given to the Public Trustee of Queensland seven days before filing the application in the Supreme Court.
Transmission Application: Where the Testator owned real estate it can be transferred by lodging a Transmission Application in the Titles Office.
Transmission Application by Personal Representative: This is usually done where it is intended the property be sold by the Executor as part of the administration of the Estate to meet debts and to pay out the entitlements of the beneficiaries.
Transmission Application for Registration as Devisee-Legatee: This is usually done where it is intended the property can be transferred to the beneficiary who has been named in the Will to receive that particular property.
Request to Record Death: This is done when real estate is held by the deceased as joint tenants with another person. By lodging the Record of Death the property is then owned solely by the surviving tenant.
As an estate planning lawyer, McLaughlin & Associates will ensure that your Will reflects your wishes for your estate. Without the assistance of an estate planning lawyer however, your Will may not be legally binding and may lack the correct wording that is required.