Understanding Probate

Understanding Probate

What is Probate?

Probate refers to the legal process of validating and executing a deceased person’s will.

It involves the court’s recognition and approval of the will as the valid and final testament of the deceased.

During probate, the court confirms the appointment of the executor named in the will and grants them the authority to administer the deceased person’s estate according to the terms outlined in the will.

This process ensures that the deceased person’s assets are distributed correctly and in accordance with their wishes. Refer to our previous article ‘What happens if I die without a will?’ should the deceased pass away without a will in place.

Do I Need to Obtain Probate?

A grant of probate is typically needed in Queensland when a deceased person’s estate includes assets of significant value such as property, bank accounts, or investments that require formal transfer of ownership. Here are some situations when a grant of probate may be necessary:

• The deceased person owned real estate solely in their name.
• The deceased person held assets, such as bank accounts or investments, solely in their name above a certain threshold specified by financial institutions. For example, the Commonwealth Bank requires probate when accounts hold more than $100,000.00.
• The deceased person held shares or securities in their name.
• The deceased person owned assets jointly, but the surviving joint owner(s) require a grant of probate to deal with the assets.
• The deceased persons will specifies the need for a grant of probate.

However, it’s important to note that not all estates require a grant of probate.

In some cases, if the deceased person’s assets were held jointly with another person, the assets may automatically pass to the surviving joint owner(s) without the need for probate – you can find out more about ownership of property as joint tenants in our article ‘Purchasing Property – Joint Ownership’.

The Laws and Process

In Queensland, the laws governing probate are primarily outlined in the Succession Act 1981 (QLD) (‘The Act’) and the practical requirements for making an application are found in the Uniform Civil Procedure Rules 1999 (QLD) (‘UCPR’). Under section 6 of the Act, the Court is granted wide jurisdiction to hear and determine probate applications.

The process of obtaining probate consists of several steps, including:

1. Supporting Documents

The executor must obtain the original will and death certificate of the deceased. It is useful to also start collecting documents regarding the assets and liabilities of the estate.

2. Notice and Advertisement – UCPR rule 599

It is necessary to publish a notice of intention to apply for probate in the Queensland Law Reporter. You must pay a fee for the advertising. The notice should specify the deceased person’s name, the date of death, and the details of the intended application for probate.

The notice allows interested parties to come forward and contest the probate application if they have valid grounds. At this stage, The Public Trustee must also be notified.

3. Waiting Period – UCPR rule 598

There is a mandatory waiting period of at least 14 days from the date of the advertisement before the application can be filed. This waiting period allows interested parties to object to the grant of probate.

4. Prepare the Application – UCPR rule 602 and 603

In preparing the application there is several other documents which must be included under the rules. This includes an affidavit by the executor regarding certain matters and proof that the advertising requirements were adhered to.

The application can then be lodged with the Queensland Supreme Court. You are required to pay a filing fee – to get the most up to date filing fee visit the Supreme Court Fees Website. In some circumstances, you may be able to pay a reduced fee if you can demonstrate you are on a low income or suffering financial hardship.

4. Objections and Caveats

If someone disagrees with the probate application, they can file a formal objection or lodge a caveat with the Court. This initiates a legal process where the Court considers the objection and may require a hearing to resolve the dispute.

5. Grant of Probate

If no objections or disputes arise during the waiting period or prior to the grant being made, and the Court is satisfied with the application, the Court will grant probate. This can take up to four to six weeks.

The grant of probate is a legal document issued by the Court that validates the will and appoints the executor to administer the estate.

6. Administer the Estate

Once the grant of probate is obtained, the executor(s) can proceed to administer the estate according to the instructions in the will. This may involve gathering and valuing assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries as specified in the will.

Is Probate Always Granted?

Probate is not always granted automatically. The Court will review the application for probate and assess its validity before granting probate. There are situations where probate may not be granted, such as:

• Invalid or improper will: If the Court determines that the will is invalid due to issues like lack of capacity, undue influence, fraud, or improper execution, probate may be denied. There are strict requirements regarding the validity of wills, including who may sign as a witness.
• Errors or incomplete applications – the Court will seek details or corrections to be made to applications and supporting documents if they do not strictly adhere to the requirements of the UCPR. This can add considerable time to a grant of probate being made.

Do I Need a Lawyer?

You can apply for a grant of probate without a lawyer, however, obtaining a grant of probate involves legal procedures, and can be a complex and confusing process. Often legal fees can be deducted from the deceased’s estate.

Having Miller Sockhill Lawyers obtain a grant of probate on your behalf has several benefits including:

• Expertise and Guidance: We can provide valuable guidance throughout the process. We can ensure that the necessary documents are prepared correctly, advise on legal requirements, and assist with potential complexities.
• Legal Representation: If any disputes or objections arise during the probate process, we can represent your interests and advocate on your behalf.
• Peace of Mind: Engaging us can help alleviate stress and ensure that the probate process is handled in accordance with the law. We can handle the paperwork, correspondence with the court, and address any legal issues that may arise.

If you have been named an executor and need help with applying for probate or administering an estate, please contact the friendly team at Miller Sockhill Lawyers on (07) 5444 4750.