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What is probate QLD: And do I need it?

The word ‘probate’ is often thrown around when talking about 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 exactly what is probate in QLD? And do I need it? We take this opportunity to briefly outline what probate is, who gets probate and what it means.

 

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)?

Queensland law generally requires that an estate not be distributed to beneficiaries within 6 months of the date of death of the deceased person.  During that 6-month timeframe, certain persons with claims against the estate might give notice that they are contesting the terms of the will. 

Ordinarily this 6-month timeframe isn’t likely to delay distribution of the estate, as estate administration is sadly not a quick and immediate process. There are some very important exceptions to this general rule; therefore, it is also important to obtain specific legal advice prior to making any distributions. This ensures that you don’t make a mistake and end up liable to compensate a beneficiary or other person for your mistake.

 

The probate process in QLD?

How long does probate take in QLD?

In Queensland, the whole process of obtaining a grant of probate takes approximately 4-8 weeks.

The process is usually as follows: 

  • A review of the original will and death certificate of the deceased person.
  • After that, a notice of intention to apply, for the grant, can be prepared.
  • Then the notice needs to be published in the Queensland Law Reporter, as well as served on the Public Trustee.  
  • Once the notice has been published and served, the court rules require a further 14 days to pass before the probate application can be filed – this is to give opportunity for those who wish to object to the application.

Which documents do I need to get probate in QLD?

The application for probate generally consists of the following documents being filed with the Supreme Court:

(a)   Application for probate.

(b)   Affidavit of Executor Supporting Probate Application. This exhibits a copy of the will and the original death certificate.

(c) Affidavit of Publication and Service.

(d)   Original will.

(e)   Clear photocopy of the will.

Once filed, it then is considered by the Probate Registry of the Supreme Court. This can take anywhere between 1-8 weeks (although ordinarily it is considered within 3-4 weeks of filing).  If all is in order, then the court issues the grant of probate and it is then available for collection within a few days.

What are the requirements of Probate in QLD?

When it comes to filing for probate in Queensland, there are some pre-filing steps, such as:

  •   Advertising your notice of intention to apply for a grant
  •   Serving that notice on the Public Trustee
  •   Waiting for the timeframe imposed by the court rules to expire before filing. 

To then obtain the grant of probate, it will require filing certain documentation with the QLD Supreme Court.  

When ready, your application for Probate, together with supporting affidavit evidence, are filed with the Supreme court. They are then processed by the Probate Registry.

Considerations to take

Therefore there is no “one size fits all” solution for probate, as it depends on various estate matters. However, the main things to consider, in relation to the probate process, include the following:

  • Where are the deceased person’s assets located?
    • In Queensland only, throughout Australia, or all over the world?
  • How much money is held in the deceased’s bank accounts?
    • 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 $50,000 – but this amount can vary from bank to bank, or may depend on other circumstances.
  • Are there any shareholdings?
    • Generally, for an executor to deal with shareholdings, a grant of probate is required where the value of any single shareholding exceeds $15,000. Other considerations also apply, such as where the shareholdings are based.
  • Is there superannuation, and is it to be paid to the estate?
    • Often superannuation forms a large asset, and it may be paid into a deceased person’s estate. Where this happens, many superannuation funds insist that probate be obtained in order to verify they pay the superannuation benefits to the authorised estate representative. 

 

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 those – individuals and organisations – that the estate needs to deal with.

For example, a bank may only require a grant of probate where the account balance is more than $40,000. Whereas a share registry may require probate where the total value of the shares is more than $15,000.

Common situations that will require a grant of probate include the following:

  •    Substantial funds are being held in bank accounts.
  •   Where there’s a nursing home Refundable Accommodation Deposit (sometimes called a nursing home bond).
  •   The deceased had a share portfolio.
  •   Where there’s litigation concerning the will or estate.
  •   Where certainty and limitation of liability are concerns for the executor.

 

When is probate not required in Queensland?

Probate is generally only required for assets that were owned solely by the deceased person.  So in circumstances where a husband and wife own their assets as joint tenants, then those assets will automatically pass to the surviving co-owner without the need to obtain probate.  

Many assets can be held as joint tenants, such as bank accounts, real estate, motor vehicles or even shares. 

It can be very tricky trying to work out whether you might need a grant of probate. Sometimes it may not be needed but is otherwise preferable for one reason or another.  Contact us and we can discuss the circumstances and offer guidance as to the circumstances and how to properly and efficiently deal with the estate – whether probate is needed or not.


Article written by Thomas Ashton – Senior Associate

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.

Liability limited by a scheme approved under professional standards legislation (personal Injury Work exempted).

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