What is probate in Queensland?
When a person passes away, and holds assets in Queensland, a Grant of Probate may be required before the wishes of the deceased can be actioned. Obtaining a Grant of Probate is the Queensland Supreme Court’s recognition and official endorsement of the deceased’s will being legally valid. Any person named as an executor in the deceased’s will is responsible for ensuring the finalisation of the deceased’s liabilities and the disbursement of the deceased’s assets to the beneficiaries named in the deceased’s will.
A Grant of Probate can only be issued if there is a will. If there is no will, or if all executors named in the will are deceased or otherwise unable to act, then the Supreme Court can grant a Letters of Administration. Letters of Administration work much like a Grant of Probate, and allow a personal representative to manage the assets of the deceased person’s estate.
The application process
Before applying for a Grant of Probate, the original will of the deceased and the original death certificate must be held.
There is then a 4-step process which involves:
- Advertising the intention of the executor/s to apply for a Grant of Probate;
- Notifying The Public Trustee of the executor’s intention to apply for a Grant of Probate;
- After a period of 2 weeks has passed from the completion of the above, an application by the executors can be lodged with the Supreme Court of Queensland; and
- Probate will usually be granted within 4-6 weeks of the lodgement of the application (depending upon the current workload of the Supreme Court).
There is not a strict time frame in which an executor must apply for probate, however all executors owe a fiduciary duty to the deceased’s estate to administer it in a swift and efficient manner.
When is probate required?
Probate is not mandatory in Queensland, however there are a variety of circumstances where a Grant of Probate will be required to finalise the assets of the deceased’s estate. The most common situation is when the executors is required to deal with other institutions where the deceased held funds or assets such as banks, share registries and aged care facilities. Many of these institutions will not release assets to the estate until a Grant of Probate has been produced. This is primarily due to the fact that institutions require formal certainty to ensure assets are being distributed to the correct person.
Scenarios where obtaining probate is likely to be unnecessary
There are a number of scenarios where probate may not be necessary, including where the deceased’s assets are jointly owned or of low value. These are discussed in more detail below:
Where the majority of the deceased’s assets are jointly owned.
Probate will not be required where the majority of the deceased’s assets are jointly held. For example, where the family home, motor vehicle and bank accounts are jointly between a husband and wife, upon either of the spouses passing away the deceased’s share can pass to the surviving spouse without a Grant of Probate.
Where the estate assets are low in value
Where the estate assets are low in value it may be possible to administer the estate without obtaining a Grant of Probate. Every financial institution has its own unique threshold regarding releasing funds without a Grant of Probate. This amount is generally in the vicinity of $20,000 – $50,000 and is always subject to change by the relevant financial institution.