Generally, before a deceased person’s final wishes are able to be performed, a procedure known as a Grant of Probate of a Will is required. This is a sealed document that is issued by the Supreme Court Registry which affirms that the executor has proven that the Will is the last valid Will/Codicil of the deceased. Once Probate is granted, the executor/trustee is entitled to deal and discharge their duties in respect of the assets of the estate and distribution to the beneficiaries.
In some situations a Grant of Probate is not required (e.g. if a residential property is held in joint names, the property will automatically transfer to the surviving joint owner/ or if there is an inter vivos trust). It is important to enquire with the body that you are seeking to obtain the estate funds from, whether they require a Grant of Probate.
With an ageing population on the Gold Coast, and increasing legislative requirements governing financial and other commercial institutions, Probate is often now required to be obtained by executors prior to releasing funds held on the deceased’s behalf. Thresholds that govern whether Probate needs to be obtained, vary at each institution, but can be as low as $15,000. Another example of when Probate might be necessary is where there is a dispute regarding the provisions of the Will.
Once Probate is granted, the executor is able to deal with the assets and distribute to the beneficiaries nominated under the Will. However, there are times when this can be a complex and challenging task, particularly with the onerous duties imported on executors, and where large amounts of money and assets are involved.
Obtaining a Grant of Probate can in some instances give a personal representative added protection pursuant to s54(4) of the Succession Act 1981, which states:
“A personal representative who in good faith and without negligence has sought and obtained a grant is not liable for any legacy paid or asset distributed in good faith and without negligence in reliance on the grant notwithstanding any subsequent revocation thereof.”
Each situation varies, so we highly recommend obtaining advice from one of our local Gold Coast Solicitors.
Generally, the following steps must be undertaken to obtain a Grant of Probate are as follows:
- Firstly, advertise your intention to apply for a Grant of Probate in both the Queensland Law Reporter and if the deceased’s last known address was at a place in Queensland more than 150km from Brisbane, in the Public Notices section of a local newspaper circulating and sold at least once each week in that area. Alternatively, if the deceased’s last known address was within 150km of Brisbane, the advertisement should be placed in a newspaper circulating throughout the state.
- You must wait for a period of 14 days after the advertisements have been published to provide any parties time to object to the Grant of Probate.
- After the period of 14 days, an application and supporting documentation must be filed in the Supreme Court of Queensland, including a court filing fee. The Supreme Court will review each application and make a determination. The following documents, at a minimum, will require lodgement with the Queensland Supreme Court Registry:
- the original Will/Codicils;
- the original Death Certificate; and
- a copy of the advertisement(s).
Our Gold Coast and wills and estates lawyers are able to guide you through the process of applying for Probate and ensuring the distribution of assets is handled in the least stressful and most timely manner. Please do not hesitate to telephone on (07) 55638970 or email admin@affinitylawyers.com.au
