Introduction

 

2.1    Executors are appointed by will, and administrators by the court, but both receive official recognition of their authority to deal with the estate’s assets through a grant of representation.

2.2    A grant of representation affords the personal representative a level of protection from liability for their dealings with the estate. The grant also allows those dealing with a personal representative some certainty about their legal authority to receive and dispose of assets.

2.3    However, the process of getting a grant can be complex, and will cost money and take time. Any cost or difficulty may be disproportionate in an estate with few assets.

2.4    To reduce the complexity of procedures, and therefore the time and legal costs involved, there are mechanisms that provide simpler and ostensibly cheaper methods of obtaining a grant for smaller estates.

2.5    As well as mechanisms for obtaining a grant of representation, there are also some processes that aim to facilitate simple and direct transfer of assets in certain cases.

2.6    The National Committee for Uniform Succession Laws1 released the final part of its four- volume report on the administration of estates of deceased persons in 2009. The first three volumes of the report review the substantive issues, while the fourth provides a summary of the National Committee’s recommendations, as well as a proposed model bill giving effect to the recommendations—the Administration of Estates Bill 2009 (Qld).2

2.7    The National Committee identified four guiding principles in developing their recommendations concerning the administration of deceased estates.3 Two of these are of particular relevance to smaller estates, being the focus on simplification of processes, and on the recognition of the extent of informal administration.

 

Simplified mechanisms for small estates

2.8    The simplified mechanisms discussed below can be divided into those that assist in obtaining a grant of representation, and those that assist in administering an estate without a grant.

2.9    Depending on the size of the estate, each of these routes is available in obtaining a grant:

•    An executor or potential legal representative files an application for a grant of representation4 at the Supreme Court Probate Registry (grant of representation).

•    An executor or potential legal representative enlists the services of the Supreme Court Probate Registry’s Small Estates Officer to assist in preparing an application for a grant of representation (assisted grant).

•    A trustee company (including State Trustees)5 as, or on behalf of, the legal representative, files an election to administer the estate (election).

•    State Trustees as, or on behalf of, the legal representative, advertises its intention to administer the estate, thereby obtaining a ‘deemed’ grant of representation (deemed grant).

2.10  Having obtained a grant under one of the above mechanisms, the legal personal representative may go on to administer the estate. Alternatively, informal administration—that is, administration without any form of grant—is increasingly available to and utilised by those administering smaller estates. Informal mechanisms can be used for the whole or part of the estate, depending on the assets involved.

2.11  To assist those administering an estate without a grant, certain statutory protections aim to afford some certainty to those administering an estate informally, and to those who deal with informal administrators.

2.12   Each of these mechanisms will be discussed in turn below.

 

FOOTNOTES 

  1   The National Committee for Uniform Succession Laws established by the Standing Committee of Attorneys-General. See [1.4].
   National Committee for Uniform Succession Laws, Administration of Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General: Volume 4,QueenslandLaw Reform Commission Report No 65 (2009).
  3  Ibid 7    
 
 4  A number of different types of grant may fall into this category, including a grant of probate, of letters of administration, of letters of administration with the will annexed, and a number of other grants that take into account special circumstances surrounding the estate’s administration.
  5  State Trustees Limited, a company owned by the State of Victoria and operating under the State Trustees (State Owned Company) Act 1994 (Vic).

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