The word ‘probate’ is often thrown around when talking about the administration of a deceased person’s estate — “We’re just waiting for the probate of grandma’s estate,” or “Grandpa’s estate is going to probate.” But what exactly is probate in Queensland? And do you need it? Here’s a clear outline of what probate is, who can get it, whether you need it, and what it means.
Quick links to everything you need to know about probate QLD
- What is probate?
- Who can apply for a grant of probate in QLD?
- Do you need a lawyer for probate?
- How long after probate can funds be distributed (QLD)?
- How to prepare for a Probate Application in QLD?
- What should you consider before applying for probate in Queensland?
- When is probate required in Queensland?
- When is probate not required in Queensland?
What is probate?
Probate is an order of the Supreme Court of Queensland that ‘validates’ a deceased person’s will. This is done by identifying the person responsible for carrying out the terms of the will. This person is known as the executor of the will.
Who can apply for a grant of probate in QLD?
Probate can be applied for and is only given to, the executor (or executors) named in the last will of the deceased person. Queensland succession law permits up to 4 executors to be appointed at the same time.
Sometimes an executor (or executors) may be deceased or do not want to accept the role as executor. In this case, the role may fall to the other co-executors, or an alternative executor named in the will.
It ultimately depends on the terms of the will, and the surrounding circumstances, as to who is the validly appointed executor.
Do you need a lawyer for probate?
Not necessarily. In QLD, there is nothing specifying that the executor must engage a lawyer to obtain the grant of probate. That being said, it can be a technical and tricky process, and so it might be worth engaging a lawyer familiar with the probate process, to get it on your behalf.
Queensland is unique among Australian succession law; in that, it does not mandate that every estate be issued with a grant of probate or letters of administration – that is, some estates can be administered without probate.
Contact us today, with a few targeted questions, we can generally identify quickly whether you’re likely to need a grant of probate, or if you might be able to avoid the time and expense of obtaining probate.
How long after probate can funds be distributed (QLD)?
In most cases, Queensland law advises executors to wait at least six months from the date of death before distributing the estate. This allows time for:
- Claims against the estate under the Succession Act 1981 (Qld).
- Creditors to come forward
- Proper valuation and collection of assets.
Early distribution can leave executors personally liable if a claim is made later, so legal advice is critical before releasing any funds.
How to prepare for a Probate Application in QLD?
What should you consider before applying for probate in Queensland?
There’s no one-size-fits-all answer when it comes to probate. Whether or not you need it depends on the details of the estate. Here are some key things to think about:
1. Where Are the Assets Located?
- Are the assets only in Queensland, across Australia, or international
- Different rules may apply depending on the location of assets.
2. How Much Money Is in the Bank Accounts?
- Most banks will require probate if the total balance is over $40,000.
- However, this amount can vary from bank to bank, and sometimes even based on the type of account.
3. Are There Any Shares?
- If the deceased owned shares worth more than $15,000, probate is usually needed before the executor can manage or sell them.
- The rules may also depend on which company the shares are with.
4. Is There Superannuation Going to the Estate?
- Superannuation can be a large part of the estate.
- If the funds are to be paid into the estate, many super funds require probate before releasing the money.
When is probate required in Queensland?
Probate is ordinarily required where there are estate assets with a substantial value. What is considered as ‘substantial’ value, ultimately depends on the individuals and organisations that the estate needs to deal with.
Common examples of when probate is required include:
- Bank balances over $40,000 (varies by institution).
Generally, banks will insist that an executor obtain a grant of probate to verify their authority to act on behalf of the estate where the total value of accounts exceeds $40,000 – but this amount can vary from bank to bank, or may depend on other circumstances. - Nursing home Refundable Accommodation Deposits (A.K.A nursing home bond).
- Share portfolios of the deceased.
- Real estate held solely in the deceased’s name.
- Legal disputes or litigation about the will or estate.
When is probate not required in Queensland?
Probate is usually only required for assets that were owned solely by the person who passed away.
If assets were owned >jointly (like between a husband and wife) and held as joint tenants, those assets automatically pass to the surviving owner. This means probate is not needed for those particular assets.
Common jointly owned assets include:
- Bank accounts
- Real estate
- Cars
- Shares
It’s not always obvious whether probate is needed. Even if it’s not strictly required, it might still be a good idea in some cases.
Need help figuring it out? Contact us and we can talk through your situation and help you decide the best way to manage the estate — whether probate is needed or not.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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