Probate is the process of obtaining a formal legal verification that a Will prepared by a person who has passed away is the true and correct last Will of that deceased person.
The process of obtaining a Grant of Probate involves the Executor making an application to the Supreme Court in the State or Territory in which the deceased held assets.
Letters of Administration
Where a person does not leave a valid will, Letters of Administration is the process of obtaining a formal appointment for a surviving family member to act as the administrator of the estate of the deceased under the rules of intestacy.
The process of obtaining a Grant of Letters of Administration is similar to that of Probate, in which a family member makes an application to the Supreme Court in the State or Territory in which the deceased held assets.
Is Probate Necessary?
While it is not mandatory that Probate be obtained, there are many reasons why it is recommended.
There are also circumstances where the Executor will have no choice but to obtain Probate before it can carry out some of the duties involved with the administration of the estate.
A Grant of Probate confirms that:
- the Will-maker has died,
- the Will is the true and correct last Will of the deceased,
- the Executor is authorised to take all necessary action to carry out the instructions contained in the Will.
A Grant of Probate is not always required where an estate is small or the main assets are held in joint names. However, it is becoming increasingly common for banks and other financial institutions to require the Executor to apply for a Grant of Probate even where the value of the assets is relatively low.
An example of where a bank regretted not requiring Probate is discussed here. As a consequence of these scenarios, it is obvious that banks will apply stricter protocols for the management of assets owned by deceased persons.
How to apply for Probate
Before making application, the Executor needs to complete the following:
- Obtain the original Will
- Ask a lawyer to examine the Will to determine whether it appears to comply with the laws of succession in Queensland
- Obtain an original certified copy of the Certificate of Death from the Registry of Births, Deaths and Marriages
Once the necessary documents are obtained, the Executor needs to complete the following:
- Place an advertisement in the Queensland Law Reporter – “Notice of Intention to Apply for Grant”. There is no longer a requirement to place an advertisement in a local newspaper.
- Send to the Public Trustee a copy of the Notice of Intention to Apply for Grant
- Once the 14 day notice period has expired, prepare the necessary documents in support of the application to the Supreme Court
The application involves submitting the following documents:
- Application for Probate – setting out the details of the deceased, the Executors details and his or her grounds for making the application;
- Original Will and a photocopy;
- Affidavit in Support – setting out the details of the evidence in support of the application;
- Original Death Certificate of the deceased;
- Affidavit of Publication – setting out the details of the advertising of the intention to apply, and the service upon the Public Trustee;
- A copy of the Notice of Intention to Apply for Grant
All documents being relied upon must be exhibited to the Affidavits submitted to the Court.
Explanation of Costs
- Death Certificate (Registry of Births, Deaths and Marriages);
- Advertising fee for the notice of intention to apply for a grant of probate (Queensland Law Reporter);
- Supreme Court filing fee for the application for the Grant of Probate (Department of Justice & Attorney General); and
- Legal Fees for advice and assistance with the preparation of the documents for the application.