Civil Law | Wills, Estates & Deaths | Probate In Brisbane

Probate In Brisbane

Probate is the legal process of validating a last will and testament. An applicant submits the will and if it is ‘proved’ and registered, the Supreme Court of Queensland issues an executor a Grant of Probate. Alternatively, in the absence of an executor or valid will, an administrator can apply for a different type of probate grant. These legal documents authorise the personal representative to act on behalf of the estate either according to the testator’s wishes or according to intestacy law. This article explains the purpose of probate in Brisbane.

What is Probate in Brisbane?

After the death of a Brisbane resident (or someone who was the owner of real estate in Queensland), a personal representative must handle the administration of the deceased estate. A probate grant authorises an executor or administrator to act on behalf of the estate in financial matters, administration and litigation.

When is it necessary to apply for probate in Brisbane?

It is necessary to apply for permission, or ‘probate’ to administrate an estate in Brisbane unless the estate is minimal and there is no chance of challenge or contest to the will. If the only significant asset of the deceased was co-ownership of a family home that was jointly owned with their spouse, then this asset will not form part of the deceased estate. That is because a property owned by joint tenants has a right of survivorship, and full ownership of the property will immediately shift to the surviving owner.

Some corporations and financial institutions require a probate grant regardless of the value of the asset, while other companies are willing to release smaller assets as long as a personal representative assumes responsibility for any liability. It is a good idea to consult a solicitor to determine whether a grant of probate is necessary.

Types of probate grant in Brisbane

The Supreme Court Of Queensland issues three forms of probate grant. The court may allow a Grant of Probate, Letters of Administration (With a Will) or Letters of Administration (Without A Will).  A Grant of Probate is the most generic form of probate, designed to prove a will and affirm the appointment of an executor that the testator nominated in the will. Alternatively, if there is a valid will but it does not name an available executor, a suitable person can apply for Letters of Administration (With a Will). Finally, if the deceased died without a valid will, an applicant can file for a Letters of Administration (Without a Will).

Who can apply for probate in Brisbane?

Only a person named as executor in the will is eligible to apply for a Grant of Probate. However, a much wider pool of individuals is able to apply for Letters of Administration. The Uniform Civil Procedure Rules 1999 authorises applicants for Letters of Administration from anyone who might have a right to inherit from the deceased estate. In the event that several people wish to act as administrator, the court will choose as administrator the individual who has the greatest claim to the estate, usually the spouse or child of the deceased. If there are no beneficiaries to apply for administration, then even a debtor of the estate can apply to the Supreme Court of Queensland for Letters of Administration.

How to apply for probate in Brisbane

Legally, there are certain steps that must be followed in order to apply for probate in Brisbane. An applicant must:

1. Advertise a Notice of Intention to Apply for Grant in the Queensland Law Reporter;
2. Mail or fax a copy of the Notice of Intention to apply to the Public Trustee of Queensland;
3. Delay for a statutory waiting period of 14 days after the advertisement appears to allow for objections to the application. The applicant can file on the 15^th day after the advertisements;
4. Prepare all required (or relevant) documentation, including the Application for Probate, Original Will with two copies of the will, an Affidavit in Support of the application, Original Death Certificate, Affidavit of Publication proving the correct completion of the advertisement, and copy of the Notice of Intention to Apply for Grant; and
5. File the application and documents with the Supreme Court Probate Registry (a total of 30 days after the date of death).

The Probate Registry will process the probate grant application in approximately 6-10 weeks, depending on how busy the Registry is at the time. It is possible for someone to apply for a Grant of Probate or Letters of Administration without a solicitor, but it is often advisable to consult a solicitor to ensure that the completion of each of the essential steps.

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