Distributing a Deceased Estate FAQs

The Will specifically bequeaths a personal item or asset that does not exist anymore. What do I do?

If the Will bequeaths a personal item (e.g. a painting) or an asset (e.g. an investment property) that does not exist at the date of death of the deceased, the specific bequest will fail. This situation will arise if, for example, the personal item or asset was destroyed or sold before the deceased passed away.

There are exceptions to the failure of a bequest if it no longer exists.  In particular, a beneficiary can apply for compensation under the Powers of Attorney Act 1998 (Qld) if a bequest has failed due to the actions of an Enduring Power of Attorney whilst the deceased was still alive.  We recommend you discuss the applicability of any exceptions with a solicitor as soon as you become aware that a specific bequest has failed.

The estate has insufficient funds to pay all of the bequests. What do I do?

In this situation, a pro-rata for each bequest is calculated. Whilst this sounds straightforward, legislation imposes certain rules when calculating the pro-rata and we recommend you liaise with a solicitor to discuss this issue further.

The Will states a beneficiary must be a certain age before receiving their bequest. What do I do?

If a beneficiary is not old enough to receive their bequest (i.e. the beneficiary is 10 years old and the Will states they are to receive their bequest when they are 18 years old), the asset bequeathed to the beneficiary will need to be managed by the executor until they reach the nominated age.

If a beneficiary is not of age, we recommend you liaise with a solicitor and an accountant to discuss the best manner in which to manage the bequest. In particular, the solicitor and accountant, acting together, can advise you on your obligations regarding the bequest, the most appropriate means of investing the bequest and minimising any legal and taxation consequences.

What is Executor's Commission?

If you have been appointed an executor of an estate, you are entitled to submit a claim for executor’s commission. Executor’s commission represents payment to the executor in acknowledgement of the services he/she has provided as part of administering the estate.

The amount you can claim for executor’s commission is variable. It will depend on the size of the estate, the executor’s conduct when administering the estate and the attitude of the beneficiaries. In some circumstances, an executor may choose to accept an agreed sum. In other circumstances, an executor may choose to accept a percentage of the total assets of the estate.

Preferably, if the residuary beneficiaries are over the age of 18 years and are able to consent, a written agreement should be reached with all of the residuary beneficiaries regarding the payment of executor’s commission. If an agreement cannot be reached, a claim for executor’s commission will need to be determined by a court of law.

If you're looking for an experienced Gold Coast estate lawyer or need help with will related matters contact ABKJ.