Just what is “Probate”?

Dealing with the death of a loved one is a difficult process, and can become more complicated as you finalise their affairs. Often when you are dealing with money in the bank or shareholdings, a bank or share company will require Probate.

When do you need to obtain a Grant of Probate?

In Queensland there is no automatic requirement to obtain a Grant of Probate – it will depend on the size and nature of the estate.

Probate is generally required when the deceased held more than $50,000 in a bank or more than $15,000 in shares with one share company though it ultimately depends on which bank or share company you are dealing with.

In recent times nursing homes and retirement villages have become quite strict in insisting that a Grant be obtained before any residual bond is returned to the estate.

Probate is not required to deal with real property, however, you should ensure that no other entity requires a Grant of Probate before you finalise any property transfer. For certain transfers the Department of Natural Resources and Mines (Titles Office) will require you to deposit the original Will, so it is important that you first find out whether it is necessary to obtain a Grant of Probate before having to deposit the original Will with the Titles Office.

So what is Probate and how do you go about getting it?

A Grant of Probate is issued by the Supreme Court confirming that the deceased’s last will is valid and that the executor has authority to administer the estate.

The process involves:

1. Placing a Notice of Intention to Apply for a Grant in the local newspaper where the deceased lived before their death – for example the Courier Mail in Brisbane or the Sunshine Coast Daily on the Sunshine Coast. A copy of the Notice is also placed in the Queensland Law Reporter and sent by post to the Public Trustee of Queensland.
2. Fourteen days after the last advertisement has appeared in the paper, an Application for Probate along with supporting Affidavits are filed in the Supreme Court of Queensland. The original Will and Death Certificate are deposited with the Supreme Court during this process.  The Court retains these original documents.
3. The Supreme Court will then assess the Application and where there are no issues, a Grant of Probate will usually be made by the Court within 4 – 6 weeks. This timeframe will always depend on the processing capacity within the Probate section of the Supreme Court.

There are particular forms that the Supreme Court requires to be completed correctly otherwise your Application may be requisitioned and you will need to make the necessary amendments and file any further documents. Further, you should ensure that your Notice of Intention to Apply for the Grant of Probate is also completed correctly before it is placed in the newspaper, otherwise you may incur further costs if you are required to re-advertise.

At Carroll Fairon Solicitors we have experienced lawyers who can assist you with administering the estate of your loved one and take steps to apply for a Grant of Probate on your behalf if required.