The Process Of Claiming Against An Estate

The process of claiming against an estate

Are you eligible to claim against an estate?

Before you claim against an estate, you need to ensure that you are eligible to make a claim. In Queensland, The Succession Act 1981 outlines who is eligible to claim. Those who can claim against an estate include:

  • Spouse.
  • Children.
  • A dependent.

If you need more information on the definitions above click here.

Next steps:

The executor of the Will must apply for a grant of probate before the deceased’s wishes can be carried out under the instructions of the Will. When applying for the grant, the executor is required to confirm the document’s validity, and the court must be satisfied that it is a valid document before issuing the grant.

If you doubt the validity of the Will, then you must make this known to the executor as soon as possible after the deceased’s death and before the Grant is issued.
If the grant has already been issued steps can be taken by lodging a caveat against the estate to prevent the grant being lodged. If you need further information on this, please contact our office.

By lodging the caveat, the executor will need to commence contested proceedings for the grant of probate, in which the Court will be asked to decide on whether the Will is valid or not.

Time limits do apply:

  • If you intend to challenge a Will, you must let the executor know, in writing within six months of the deceased person’s death. The application must commence within nine months of the deceased’s death.
  • The court will then determine whether adequate provisions have not been made or advise whether they believe the claim should be settled out of court, depending on the size of the estate.