Written by: Yolandi Breedt
Whether you’re handling the estate of a recently deceased loved one, named as a beneficiary in a Will, or simply curious about the legal process, it’s important to understand what a grant of probate with the Will is. This legal document is essential for managing and distributing a deceased person’s assets according to their wishes.
In addition to a grant of probate there are two other types of grants which are common:
- Grant of Letters of Administration with the Will: When there is a valid Will but the named executor/s are incapable or unwilling to take up this role.
- Grant of Letters of Administration on intestacy: If someone passes away without a valid Will.
However, this article will specifically focus on obtaining a Grant of Probate with the Will.
What is Probate?
Probate is the legal process where the Supreme Court ‘validates’ a person’s Will and confirms that the people appointed in the Will as executors are authorised to administer the deceased person’s estate (following the wishes outlined in the Will).
Example of Probate
Imagine that Sally has passed away, and she left behind a Will stating that her assets are to be split equally between her two children, Michael and Lucinda. Sally’s Will also names Michael as the executor, the person responsible for making sure her wishes are carried out.
Because of the types of assets that Sally held, before Michael can begin distributing Sally’s assets, he needs to go obtain a Grant of Probate. This means he must apply to the Supreme Court of Queensland for a Grant to be issued in his favour, recognising the Will as valid.
The court looks at the Will to make sure it meets all the legal requirements (like being signed properly). Once the court confirms that the will is valid, they officially “approve” it through the probate process.
After the Will is validated, Michael is given the authority by the court to manage Sally’s estate. This includes paying any debts, distributing the assets as specified in the will, and finally, closing the estate once everything is settled.
So, in simple terms, probate is the court’s way of ensuring that everything is done legally when someone passes away. It also ensures the right people are in charge of carrying out the deceased’s wishes.
When is Probate Required in Queensland?
In Queensland, probate is required for a variety of reasons.
The most common reason being that there are estate assets with substantial value. Each estate needs to be assessed on a case-by-case basis as each organisation will have a different threshold for when probate is required.
For example, some banks only require probate if the account balance exceeds $100,000 where other banks may require probate if the balance exceeds $50,000.
It’s also common practice to obtain probate if there is any litigation concerning the Will or the estate. This provides protection and limitation of liability for the executor.
When is Probate Not Required?
There are limited circumstances where an executor would not need to obtain probate in order to access and distribute the deceased’s assets.
Probate is not required…
- If the value of the estate assets do not exceed the relevant organisation’s ‘probate threshold’, you may be able to release the assets without obtaining probate. It’s always recommended that you check with these types of organisations before applying for probate.
- If the deceased’s assets were all held as joint tenants, the assets automatically pass to the surviving joint tenant under the rules of survivorship. In these circumstances, probate would not be required.
- If the only estate asset is real property.
Who can apply for a grant of probate in QLD?
A grant of probate can only be applied for by one of the named executors in the Will. Priority falls to the first named executor/s. If they are unwilling or incapable of accepting the role, the role falls to the substituted executors.
There might be circumstances where none of the named executors can accept the role (due to death, mental incapacity or simply being unwilling). An application for a Grant of Letters of Administration with the Will would need to be considered. It’s important to get advice from a specialised succession law solicitor regarding your specific circumstances.
Why do I need to apply for a grant of probate?
Certain organisations such as banks, nursing homes, superannuation companies and the Titles office may not release the assets or funds held without sighting either the original Grant of Probate or a certified copy.
Further, many people obtain a Grant of Probate simply for the protection it affords the executor.
If a later Will is discovered, the executor of the probated Will cannot be sued by the executor of the later Will for actions taken by the first executor pursuant to the court’s authority through the Grant of Probate.
The exception is where the existence of the later Will was known and not disclosed by the first Executor in the probate application.
Process of Applying for Probate in QLD
1. Advertise in the QLD Law Reporter
The executor must publish their notice of intention to apply for a grant in the Queensland Law Reporter. This notice provides creditors of the deceased an opportunity to make their claims on the estate known. It also allows an executor appointed under a newer Will to step forward, if one exists.
This notice must be published for at least 14 days before the application for a grant of probate can be made to the Supreme Court.
2. Notify the Public Trustee
At least 7 days before the application for a grant of probate is made, a copy of the QLR notice must be served on the Public Trustee.
3. File in the Supreme Court of Queensland
To apply for a grant of probate, certain court forms must be filed with the Supreme Court.
It’s important to prepare these documents properly otherwise there might be delays in issuing the grant of probate. As part of the application process, the Supreme Court will require the original Will and original death certificate. They retain these documents for their records and do not return them.
How long does Probate Take in Queensland?
It can take the Supreme Court between 4 – 12 weeks to issue a Grant of Probate. If there are issues or complexities with your application, this timeframe can be extended even further.
What Happens After Probate is Granted in Queensland?
Once probate has been granted, the executor can immediately begin administering the deceased’s estate. This will include dealing with relevant bank accounts, superannuation, share portfolios, real property etc.
Any estate liabilities will also need to be paid (including tax liabilities for the deceased personally and for the estate).
How Long After Probate Can Funds Be Distributed?
Due to the specific legislation in Queensland, it’s recommended that executors do not distribute any estate assets to the beneficiaries until 6 months after the deceased’s date of death.
Once the 6 months have passed, probate has been granted, and all liabilities have been paid – the executor can look to distributing the estate assets.
Can a Will Be Contested While Getting Probate?
Yes, it is possible to file a family provision application seeking further provision from a Will while a probate application is being considered by the Supreme Court.
The person contesting the Will has six months from the deceased’s date of death to notify the executor of their intention to do so. They must then make an application to the relevant court within nine months of the deceased’s date of death.
The estate cannot be distributed whilst there are contested proceedings underway.
When to Get a Probate Solicitor
Succession Law can be quite complex and each estate will have its own specific circumstances. Whilst the blank court forms are available online, the Supreme Court can’t provide legal advice on how to prepare the documents. Documents that are not completed correctly can result in extra costs and delays to the estate. We recommend you contact our experienced succession law solicitors to assist you in your probate application.
Disclaimer:
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.
Greenhalgh Pickard’s Wills & Estates Team
