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What Is Probate In QLD & Do I Need It?

Jun 19, 2024

Understanding Probate and The Process in QLD

Probate is a legal process that verifies and carries out the instructions in a person’s Will after they pass away. In Queensland Australia, the probate process involves several key steps:

  1. Application for Probate: The executor named in the Will (or another appropriate person) applies to the Supreme Court of Queensland for a grant of probate. This application includes advertising your intention to apply for a grant of probate, submitting the original Will and certain documents, such as an inventory of assets and liabilities.
  2. Court Assessment: The court examines the application to ensure the Will is valid and that the executor has complied with legal requirements. This typically involves verifying the deceased’s identity, providing the Will was properly executed, and confirming the executor’s authority.
  3. Grant of Probate: If the court approves the application, it issues a grant of probate. This document confirms the executor’s authority to administer the estate according to the terms of the Will. The executor can then manage and distribute the deceased’s assets, settle debts, and handle any legal matters.
  4. Notice to Beneficiaries and Creditors: After obtaining probate, the executor must notify beneficiaries named in the Will and publish a notice to alert any creditors. Creditors have a limited time to make claims against the estate.
  5. Estate Administration: The executor’s responsibilities include collecting and valuing assets, paying debts and taxes, and distributing assets to beneficiaries as specified in the Will. This process requires careful accounting and compliance with legal obligations.
  6. Final Distribution and Accounting: Once all debts, taxes, and expenses are settled, the executor prepares a final account of the estate’s administration. This account details all transactions and distributions. Beneficiaries review and approve the final account before receiving their inheritances.
  7. Closing the Estate: After completing all necessary tasks and obtaining approval from the beneficiaries, the executor files a request with the court to formally close the estate. Once the court approves, the estate administration concludes.

 

Throughout the probate process, it’s crucial for the executor to follow legal requirements diligently, keep accurate records, and act in the best interests of the estate and beneficiaries. Executors can seek legal advice and assistance to navigate complexities and ensure compliance with all probate laws and procedures.

When is Probate Required?

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:

  • Where there is a sale, or transfer of ownership of a property
  • 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.

Probate vs. Non-Probate Assets

In Queensland, as in many jurisdictions, the assets of a deceased person can generally be categorised into probate and non-probate assets. Understanding this distinction is crucial for estate planning and administration. 

Probate Assets

Probate assets are those that require court validation through the probate process before they can be transferred to beneficiaries. These typically include:

  1. Assets Solely Owned by the Deceased: This includes real estate, bank accounts, investments, and personal property solely owned by the deceased at the time of death.
  2. Assets Held in the Deceased’s Name Only: Assets such as shares, vehicles, and certain insurance policies that are registered or titled solely in the deceased’s name.
  3. Assets Without Designated Beneficiaries: Any asset for which the deceased did not designate a specific beneficiary.

Non-Probate Assets

Non-probate assets are those that pass directly to beneficiaries without needing to go through the probate process. Common examples include:

  1. Jointly Owned Property: Property held in joint tenancy or tenancy in common with rights of survivorship automatically passes to the surviving owner(s) outside of probate.
  2. Assets with Designated Beneficiaries: Assets such as life insurance policies, superannuation (pension) benefits, and some bank accounts that have designated beneficiaries.
  3. Assets Held in Trust: Assets held in a trust where the deceased is not the sole owner and does not have direct control over distribution.

Common Challenges in the Probate Process

Navigating the probate process in Queensland can present several challenges. Here are some common ones:

 

  1. Complexity of Documentation: The probate process often requires extensive documentation, including the deceased’s Will, asset details, and various legal forms. Gathering and organising these documents can be complex and time-consuming
  2. Legal Technicalities: Probate involves legal procedures and requirements that must be strictly followed. Any errors or omissions in paperwork can lead to delays or complications
  3. Disputes Over Wills: Disputes may arise among beneficiaries, family members, or other interested parties regarding the validity of the Will, its interpretation, or the distribution of assets. These disputes can significantly delay the probate process
  4. Executor’s Responsibilities: The executor of the Will (or administrator, if there is no Will) has fiduciary duties to fulfil, such as identifying and valuing assets, paying debts and taxes, and distributing assets according to the Will or intestacy laws. These responsibilities can be overwhelming, particularly for individuals unfamiliar with legal and financial matters
  5. Estate Taxes and Debts: Determining and settling estate taxes, outstanding debts, and liabilities of the deceased’s estate can be complicated. This often involves liaising with financial institutions, government bodies, and creditors
  6. Family Provision Claims: In Queensland, eligible individuals can contest a Will or make a claim for further provision from an estate if they believe they have not been adequately provided for. Such claims can lead to protracted legal proceedings
  7. Property and Asset Issues: Issues related to property title transfers, real estate valuations, and other asset-specific matters can further complicate the probate process
  8. Legal Costs: Legal fees associated with obtaining probate and administering the estate can be significant, especially if disputes or complex issues arise
  9. Executor’s Duties Abroad: If the deceased owned assets overseas or was a non-resident of Queensland, additional legal considerations and procedures may apply, potentially requiring coordination and international authorities

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, is 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

 

Do You Need a Lawyer for Probate?

In QLD nothing specifies that the executor must engage a lawyer to obtain the grant of probate. However, 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 and in accordance with the directions issued in the Will.

Contact the team at The Legal House and we can discuss the circumstances and offer guidance as to how to properly and efficiently deal with the estate – in other words, whether probate is needed or not.

Nick Harrison

Nick Harrison

Founder & Solicitor

Nick is passionate about family law, domestic violence, and wills and estates, Nick has been practising as a Solicitor of the Supreme Court of Queensland and the High Court of Australia since 2012.  He provides practical legal advice to his clients, using his unique blend of impeccable legal skills and real-life experience as a police officer, husband and father.

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