*The contents in this blog relates to legislation in Queensland.
We often receive questions from executors/administrators of estates as to when he/she can distribute the estate to the beneficiaries and be protected in doing so.
Most Executors/Administrators are surprised to hear that no distributions of the estate should be made until after 6 months from the date of death has passed.
This is because in Queensland, spouses including de facto partners, children including step-children and/or financial dependants can bring a claim for further provision from a deceased estate. These types of claims are often referred to as a Family Provision Application (FPA).
The Applicant (the person bringing the FPA) must provide written notification to the Executor/Administrator of their intention to bring an FPA within 6 months following the date of death. Once such a claim is notified, the Applicant must then make the actual application within 9 months following the date of death.
An executor or Administrator of an Estate has a duty under 52(1) of the Succession Act 1981 Qld (The Act) to distribute the estate as soon as reasonably possible. Accordingly if the Executor/Administrator has not received notice of an FPA, the Executor/Administrator should distribute as much of the estate as possible, after the expiration of the 6 month period, because if the estate remains undistributed, a notice of intention to make an FPA can be given any time before the 9 month period.
However if the 6 month period has already expired and the entire estate has been distributed, there will no longer be any assets in the estate for a person to claim against if they bring an FPA.
In some estates you are simply waiting for the 6 month period from the deceased’s date of death to pass to see if you get any notices of intention for an FPA.
These time limits exist to avoid a situation where Executors you are holding on to estate assets indefinitely in case any application is made. Under these time limits, if you receive no notice of any intention to make an application within 6 months, you can distribute the assets in accordance with the Will at the expiration of that period. Similarly, if a person notifies the Executor/Administrator of their intention to make an application within 6 months, but then fails to lodge an application in court within the 9 month period, you can then distribute the assets upon the expiration of that 9 month period.
If you distribute the assets in accordance with these time limits, the Executor/Administrator will then be protected from liability pursuant to section 44 (3) of the Act.
Conversely if Executor/Administrator distributes the assets within the 6 month or 9 month period, as the case may be and then an application is properly notified and brought, the Executor/Administrator can become personally liable to restore the assets of the estate from their own funds.
Waiting out the prescribed periods gives the Executor/Administrator comfort in knowing that once the assets are distributed, the beneficiaries could not be compelled to make them available to satisfy any order for further provision.
If you have any questions or require legal assistance in relation to distributions of estates or family provision applications please contact Turner Freeman Lawyers Queensland Wills and Estates Department on (07) 3025 9000 for obligation free advice.