When a person dies with a valid Will, the Executors will usually apply for a grant of Probate. Probate is when the Supreme Court officially recognises the Will as legally valid and gives the authority to the Executors to start administrating the estate of the deceased.
Two types of grants
There are two other types of grants with regards to Estates.
Grant of letters of administration of a Will
This grant is used when there is a valid Will, but the application is made by a person who is not named as an Executor in the Will. Once the application has been approved, instead of being called an Executor, that person will be known as the Administrator.
Grant of letters of administration on intestacy
This grant is used if there is no valid Will at the time of death. The authorised person in a grant of letters of administration will be called an administrator. In this situation, the estate will be administered under the rules of intestacy.
Do I need Probate?
While obtaining a grant of Probate is generally standard in estate matters, in Queensland there are some situations where an estate does not require Probate.
- If there is a limited amount of cash in the estate
- If there is a property to be transferred to a beneficiary in the Will
- If there is real estate to sell.
There are provisions in the Land Titles Act to cover the situations listed in points two and three. However, it is generally advisable to obtain a grant of Probate in order to deal with the Estate.
Getting Probate is generally the rule, not the exception. This is because Probate allows the executor to deal with the affairs of the estate under the rules of Probate. This stops the executor being personally liable for any mishandlings of the estate.
Most financial institutions, super funds, shareholders, banks all require Probate in order to discharge liabilities or distribute the Estate.
What is the process?
Probate requires the executors to advertise and file legal documents with the Supreme Court of Queensland. The executor has to make sure all the documents, notices and advertisements are done correctly, or the Supreme Court will requisition the application for Probate. Usually, executors appoint a solicitor in order to relieve them from the additional stress of making a Probate application.
The steps for obtaining a grant of Probate are:
1. Advertise in the QLD Law Reporter
- A notice for an application for Probate must be published.
- Wait 14 days after the notice has been published in order to give persons a chance to object to the Probate application.
2. Notify the Public Trustee
- Notify the Public Trustee of your intention to apply for a grant of Probate.
- Wait seven (7) days before applying for Probate.
3. Prepare Probate Documents
- You will have to provide the court with an application, affidavits, exhibit sheets, the original Will and the death certificate.
4. File in the Supreme Court of Queensland
- You can either attend the court in person or post the documents in. Remember you have to provide the court with original documents. Therefore, most people apply in person.
- You are required to pay the filing fee as per the Supreme Court Rules.
It is very important the Will is kept in as perfect a condition as it can be. Do not staple anything to the Will as its validity may be called into question. The Supreme Court will retain the original Will and the original death certificate. If you require another original death certificate, you must apply to births, deaths and marriages.
How long does probate take?
Once you have lodged your Probate application with the Supreme Court, it will take 4-6 weeks depending on how many other applications the Supreme Court has at that time.
If there are issues with your application, you will be contacted and asked to rectify it.
If there are no issues with your application, your certificate of probate with a copy of the Will attached will be posted to you or made available for your collection.
Once you have probate
Once the executor has received the Grant of Probate, they can start to distribute the assets as per the deceased’s wishes in the Will.
Due to the laws on contesting a Will, it is recommended that the estate not be distributed until after six months from the date of death. If there is notice that the Will is to be contested, then the Executor will not distribute the Estate until the contested matter is resolved.
After Probate, the executor will finalise the assets and liabilities of the Estate. Once the balance of the estate is determined, then the executor will inform the beneficiaries of their final inheritance and distribute the estate.
Can family members contest a Will while getting Probate?
If a Will is to be contested, the party contesting it must notify the executor of their intention within six months of the date of death. Then the party must make an application to the Supreme court within nine months of the date of death. Therefore, it is still possible to contest a Will while a Probate application is being considered. The Estate will not be distributed if notice that the will is being contested has been given to the Executor.
Obtaining Probate and dealing with estate matters can be difficult and often requires knowledge of the process and the law. It is recommended a solicitor be involved in all estate matters.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.