Wills and Probate
If you are named as executor in a Will, you are responsible for carrying out the terms of the Will when they die. This may involve applying for a grant of probate, or letters of administration. A grant is the formal process of the Court recognising that the Will is legally valid, and you are authorised to deal with the assets of the estate.
Types of Grants
There are three main grant types:
- Grant of probate —where a valid Will was written, and an executor named in the Will is applying;
- Grant of letters of administration of the Will —where a valid Will was written and someone other than an executor named in the Will is applying (e.g. the Executor has died, or no longer wants to perform their role). The person applying for letters of administration will be the authorised person to deal with assets;
- Grant of letters of administration on intestacy —where no valid Will was written. The person applying for letters of administration will be the authorised person to deal with assets. The estate is administered according to the intestacy rules.
You may also need to reseal a grant of probate if another state grants the probate but assets are found in Queensland.
You are not required by law to apply for a grant —but there are certain circumstances when you may need it.
Do you need a grant of probate?
You may need a grant of probate because a person or organisation holding estate assets will not release them without sighting a grant of probate. You should ask the organisation involved (e.g. financial institution) whether you need a grant of probate. You may not need one if:
- the value of the assets is relatively small (e.g. a small bank account)
- the real estate is to be transferred to a beneficiary named in the Will
- you have to sell real estate.
You should not need a grant of probate if the only estate asset is the family home and the title is held in joint names because ownership transfers to the surviving joint owner upon death.
Applying for a Grant
The process for getting a grant to administer an estate can be complicated and it may be preferable to engage a solicitor to guide you through the process and apply for you. There are five basic steps to apply for a grant of probate, grant of letters of administration of the Will and grant of letters of administration on intestacy.
Step 1: Advertise your intention to apply for a grant in the Queensland Law Reporter (QLR). The correct wording of the advertisement is important and pre-formatted documents can be found on the Supreme Court website.
Step 2: Give a copy of the notice to the Public Trustee, by post, fax, email or deliver the notice in person. Wait until seven (7) days after the Public Trustee receives the notice to file your application (e.g. if you serve your notice on Friday 8 May, don’t file before Monday 18 May.)
Step 3: Give people time to object
Wait fourteen (14) clear days after your notice appears in the Queensland Law Reporter to enable people to object to your application. You can file your application on the 15th day, but if the registry is closed that day, file on the next day the registry is open (e.g., if the notice appears on Friday 8 May, you can’t file before Monday 25 May.
Anyone claiming to have an interest in the estate can file a caveat (objection). If they have evidence, the Court won’t make the grant of probate until the claim is resolved.
After a person files a caveat, you should seek legal advice as examination of the estate stops until the caveat process is completed. The registrar will send a notice of same to the person lodging the caveat and the applicant.
Step 4: Prepare the documents for your application
This normally involves the following documents:
- Notice of Intention to apply for probate
- Application for grant of probate
- Affidavit in support of application for grant of probate
- Affidavit of service and publication
The documents must comply with the certain legal requirements and it may be beneficial to seek legal advice about this if you are unfamiliar with the rules.
Step 5: File at the Supreme Court
Once all the above steps are completed, you can file your application and supporting document at the Supreme Court, either in person or by post. Filing fees of $722.60 apply.
Once you have filed your application, court staff examine the documents and, if everything is in order, issue the grant in approximately four (4) to six (6) weeks.Our Wills and Probate lawyer can help you in filing the application.
Feel free to contact us if you need help with Wills and Probate.