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  • Writer's pictureLynchLaw

What is Probate?

Updated: Jan 20, 2023

If you are named as executor in someones will, you have the responsibility of carrying out the terms of their will when they die.  This means that you have to deal with their property (commonly known as their ‘estate’). To act on the will, you may have to instruct your solicitors to apply for probate.

What is probate?

Probate is official recognition that a will is legally valid.

How does the process work?

As executor, your solicitors will apply to the Supreme Court for a ‘grant of probate’.  The grant is a document certifying that the Supreme Court recognises your authority to deal with the estate. The court will only issue the grant once it is satisfied that the will you wish to act on is the last will of the person who has died.

But aren’t the contents of a will private?

No.  Once a will is filed at the court it becomes a public document, and anyone who asks at the court can see it on payment of a small fee.

Why would I need a grant of probate?

The main reason is that some people or organisations holding assets of the estate will not release them without sighting a grant of probate. The grant can also give you the security that the will has been recognised by the Supreme Court as the valid last will of the deceased and this gives you legal protection from claims by beneficiaries that you have dealt with the estate incorrectly.

Do I have to apply for a grant of  probate?

Not necessarily. You don’t need a grant of probate if the asset (e.g. the family home) is in joint names, because it already belongs to the surviving joint owner.

In some situations, it is worth checking first with the organisation involved to be sure that a grant of probate is really necessary.  You may not need one if:

  • The assets are not large (e.g. a small bank account);

  • Real estate is simply to be transferred to a beneficiary named in the will (the Land Titles Office has a special procedure for this, and you usually don’t need a grant of probate);

  • You have to sell real estate (the Land Titles Office has a special procedure for this, too, and you usually don’t need a grant of probate).

How your solicitors apply for a grant of probate

There are six basic steps that must be completed:

  • Assess the application in terms of the requirements of the Supreme Court’s Uniform Civil Procedure Rules and forms.

  • Advertise your intention to apply for a grant of probate.  Place an advertisement in the Public Notices section of the daily paper in the area where the deceased last lived, and in the Queensland Law Reporter.

  • Serve a copy of the advertisement notice on the Public Trustee, complying with formalities for service and prepare the appropriate affidavit confirming service.

  • Wait for two weeks after the advertisement appears to give others time to object if they want to.  Anyone claiming to have an interest in the estate can file a ‘caveat’.  This stops a grant of probate being made until the claim is sorted out.

  • Prepare the documents for your application. 

Your solicitors will need:

  • The original will (pins cannot be attached to a will);A certified copy of the Certificate of Death (available from the Registrar-General’s Office); and

  • A copy of the advertisement.

Your solicitors will file your application and supporting documents at the Supreme Court.

What happens then?

Staff at the court examine the documents and, if everything is in order, prepare the grant.  Your solicitors will collect it when it is ready or post it, if a stamped envelope has been provided.

How long does it take?

Once the application is filed in the court, the grant should be ready about a week later.  If there are any problems, the court staff will let you know so that you can sort them out. It is then the responsibility of the executors to

How much does it cost?

The outlays include advertising fees, court filing fees, postage, the fee for the certified copy of the Death Certificate, and paying for the preparation of the documents.

What else am I required to do?

An executor has many duties, such as:

  • Gathering or taking control of estate property;

  • Lodging tax returns and finalising tax affairs;

  • Advertising for any debts owing, and paying those debts out;

  • Finalising any financial or business affairs;

  • Paying out legacies;

  • Distributing or transferring the estate property according to the will.

If this involves the sale of shares, the procedure for each share registry must be followed and you can expect delays in the processing of documents.

Many of these duties can usually only be finalised once the probate has been granted and  received.

You must be very careful in your administration of the estate, because you can be held accountable for any losses. The assistance of your solicitor in this regard is crucial. Most importantly, the estate cannot be finalised until the period a person seeking to make a claim against the estate, has elapsed. This period is 9 months from the date of death.

What if there is no will?

If a person dies without leaving a will, the court can make a similar grant, known as ‘letters of administration’.  Rule  610 of the Uniform Civil Procedure Rules allows a de facto spouse to apply for letters of administration.

As there is no executor, the next-of-kin takes on the role of dealing with the deceased’s estate.  Remember that this cannot be done until a grant of letters of administration is made.

Letters of administration are essentially the same as a grant of probate – they show that the court has examined the relevant documents and is satisfied that the person named in the letters has the authority to administer the estate.

How is the estate divided if there is no will?

The assets go to the next-of-kin according to rules set out in the Succession Act 1981.  Changes in the Act in 1997 recognise defacto relationships of five years for this purpose.

What is the procedure for applying for letters of administration?

It is basically the same as for a grant of probate.  Generally the only difference is that the documents you supply do not include a will.

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