Please note: I have made a frequently asked questions page that helps describe the meaning of common legal questions and terms that people ask in relation to Wills.
Table of Contents of This Page
- What is Probate for a Will?
- What is the Probate Process in Queensland?
What is Probate for a Will?
Probate is the legal process that executors of a Will must go through to validate a Will. The legal document that the court provides is named a Grant of Probate which validates the Will and authorises the executors to deal with the estate, including to pay the deceased’s debts, distribute assets to beneficiaries as provided by the Will.
Other Types of Probate in Queensland
Aside from the most common form above, there are other types of Probate in QLD including:
Letters of administration of a Will
People may apply for this a grant of letters of administration where that person who is applying is not an executor. This often happens where the executor dies before the Will-maker, does not want to act as the executor any longer or the executor is perhaps is suffering from incapacity.
Letters of administration on intestacy
Intestacy refers to where a person dies without a Will. Therefore a grant of letters of administration on intestacy may be applied for in such cases.
Who Can Apply For Grant Of Probate?
The Executors named in the Will are the people responsible for applying for a grant of probate in Queensland.
Who Can Get a Copy of a Will?
Those wishing to obtain a copy of a Will of a person who is deceased must first confirm whether they are legally entitled to requested and obtain it. Those legally entitled to obtain a copy of the Will include:
- those people include those named in a will or a previous version of a will of the deceased
- spouse parent of a child of deceased
- anyone named in a prior will of the deceased, a person who has a legal claim against the estate such as a creditor
- a person under the age of 18 years who is named in the Will who has a claim to the estate under the laws of intestacy, or
- a person named as the attorney in an enduring power of attorney.
When Is A Grant Of Probate Required in Queensland?
Probate provides the executor with the legal authority to administer to the estate of the deceased. It also provides banks and other institutions confirmation that the executive is the correct person to administer the estate. You should contact the banks and other institutions to see if they require a grant of probate before administrating any assets that they hold.
When is Probate Not Required in Queensland
Generally, you don’t need probate in Queensland when the value of the estate is very small. However, is this greatly depends on the institutions that you are dealing with as they have certain requirements and thresholds, when it comes to the value of the estate, that you need to be aware of.
What is the Probate Process in Queensland?
Below is the process for applying for a regular grant of probate, where the deceased died with a valid Will. We have not included the requirements for a reseal of a grant of probate or a grant of letters of administration (with and without a will).
1. Advertise in the QLD Law Reporter
Those intending to apply for a grant of probate must advertise a notice that intention with the Queensland Law Reporter.
2: Give a copy of the notice to the Public Trustee
When the advertisement appears in the Queensland Law Reporter, applicants must send a copy to the Public Trustee. You can send it by email, post or deliver it to them in person.
3: Prepare the documents for your application
Probate starts by way of application. As with any other application to the court, it must be accompanied by an affidavit that exhibits the death certificate of the testator or testatrix as well as a copy of the last will. an additional affidavit should also be filed swearing or affirming that the notice has been provided to the Queensland Law reporter And that the notice has been provided to the public trustee. I notice of intention to apply for a grant of probate should also be exhibited. We must recommend that a lawyer should fulfil the steps as it is quite intricate and confusing to those without qualifications in this area of law.
4: File at the Supreme Court
Applicants should not file the application for a grant of probate with the court until after 7 days is lapse after the applicant has provided the public trustee with the notice. The application must be filed in the Supreme Court of Queensland as that is the only Court that has the jurisdiction to issue a Grant of Probate.
Applicants will need to pay a filing fee when they file the application for a grant of probate with the Supreme Court Registry, closest to where the deceased last lived.
What Happens After You File With the Court?
After you lodge the application, court staff examine the documents and, if everything is in order, issue the grant. What’s your filed registry staff will review the documents to ensure that they comply with the relevant laws and rules. If everything’s in order, the Court will provide a grant of probate.
How Long Does Probate Take?
After filing an application is made, it usually takes between one money to six weeks for the grant to be issued, provided that the application complies with the rules and laws including the Succession Act and Uniform Civil Procedure Rules. If the application does not comply the court may issue a notice requisition to the executor.
What happens after a Grant of Probate is Issued in Queensland?
As mentioned earlier once probate is granted, it provides the executor with the legal authority to administer the estate. The cost of the funeral should be paid first from the estate followed by any expenses that the executors have incurred in administering the estate – such as funeral costs.
After these expenses are paid the executor must pay any outstanding debts of the deceased. The executor is also required to establish a bank account for the purposes of depositing funds from banks and superannuation institutions and the proceeds of sale of any assets.
Once the expense and debts are paid, the assets are distributed according to the Will. The estate may then be wound up after the executors arrange a statement to the beneficiaries of how those assets were distributed and that shows the calculation of the total value of the estate.