Probate

A Grant of Probate is an official recognition by a Court that a Will is legally valid.

Do I need to apply for Probate?

In some circumstances it is necessary to make an application for a Grant of Probate. For example an application for a Grant of Probate may be required when there is a dispute with respect to the provisions of the Will or if an institution such as a bank or insurance company requires that probate be obtained prior to releasing funds to the Estate.

In some circumstances a Grant of Probate is not required (e.g. if an asset such as a home is held in joint names it will be automatically transferred to the surviving joint owner). It is important to always check with the organisation that you are seeking to obtain money from as to whether or not they require a Grant of Probate.

It should however be noted that obtaining a Grant of Probate can give a personal representative protection under s54(4) of the Succession Act, 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 would recommend obtaining advice from one of our specialist team members.

Who applies for Probate?

The executor of the Will is the person entitled to apply to the Supreme Court for a Grant of Probate.

The Court will only issue the Grant of Probate when it is satisfied that the Will presented to the Court is the last Will of the person that he passed away.

The executor may also be referred to as the personal representative.

How to apply for a Grant of Probate

To apply, there are four (4) basic steps:

1. You must 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 the area the deceased last lived. If the deceased’s last known address was within 150km of Brisbane, in a newspaper circulating throughout the State.
2. You must provide a copy of the advertisement to the Public Trustee.
3. You must wait for a period of 14 days after the advertisements have been placed to give other parties time to object to the Grant of Probate. Anyone wishing to object can file a caveat in the Court which will stop a Grant of Probate being given until that claim has been resolved.
4. After the period of 14 days, the appropriate documentation must be filed in the Supreme Court of Queensland, along with the Court filing fee. The Court will carefully consider each application. The following documents are also required to be lodged with the application:

• the original Will
• the original Death Certificate
• a copy of the advertisement

The original Will and Death Certificate will not be returned by the Court. It is therefore very important to obtain a certified copy of the Death Certificate or obtain a duplicate original from the Registry of Births, Deaths & Marriages.

A copy of the Will is contained within the Grant of Probate.

After an application for a Grant of Probate is filed the Court will consider the application and if satisfied will make an order for the Grant of Probate.

This process can take between 6 – 8 weeks to be completed.

Want more information?

We are able to assist with all aspects of wills and estates and will provide a fixed fee quote to carry out the work.

Contact our Wills and Estates team today to discuss your legal needs.

See also