What is probate and when is it needed in Queensland? - JHK Legal Commercial Lawyers

3 September 2019

What is probate and when is it needed in Queensland?

As Benjamin Franklin wrote in 1789, “nothing can be said to be certain except death and taxes”.

We’ve come a long way since then and with some more positive certainties in life; happiness, love and Netflix were just a few that sprung to mind.

Unfortunately Mr Franklin’s famous saying still prevails today and at some point during our lives we all experience the loss of a loved one. It is always a difficult time when we lose someone close to us and if you are a named executor in your loved one’s Will or if your loved one has died without a Will it can also be a confusing time to understand what needs to happen with the deceased’s property and what even is probate?

What is a Grant of Probate?

A grant of probate is the Supreme Court’s recognition that a will is legally valid. If there is no will, or the executors named in the will are unable to act, the Supreme Court can grant letters of administration to personal representatives to deal with the estate of the deceased person.

Probate provides the personal representatives with protection to deal with the deceased’s assets. It also provides protection to third parties so they know they are dealing with the correct personal representative of the estate.

There are 3 types of probate that can be applied for in Queensland:

  1. Grant of probate – this is when a valid Will exists and the executor or executors named in the Will are making the application.
  2. Grant of letters of administration of the Will – this is where a valid Will exists and someone other than the named executors is making the application. For example: when the named executor has died or is incapacitated and otherwise unwilling or unable to act.
  3. Grant of letters of administration without a Will – this is where no valid Will exists. This is known as dying intestate.

The 3 types of probate have specific requirements that must be strictly adhered to before the Court will issue a grant of probate however there is a similar process to follow for all 3.

Does every personal representative need a Grant of Probate?

There is no legal requirement that probate be procured in Queensland.  However, there are some reasons why a personal representative would obtain probate, including:

  1. Personal protection – If it was to eventuate that there was some other Will and the personal representative should not have been dealing with the assets of the estate, probate would protect the personal representative from personal liability from any claim that they “intermeddled” with the deceased’s estate. This can be crucial in some estates where it is likely the estate will be subject to a family provision application.
  2. Dealings with others – Some entities that hold the deceased’s property (e.g. Banks, share registries, superannuation funds and aged care homes) will not release those assets until probate has been granted. This is so the entities can be assured they are handing over the assets to the appropriately authorised person.

Below are some scenarios where it would be unlikely that probate would be required.

  1. Joint assets

If all or majority of the deceased’s assets are owed jointly with someone else as joint tenants.

For example:  Ross and Rachel are married. They own the family home together as joint tenants, hold all bank accounts jointly and have a joint share portfolio.

Ross died leaving a valid Will naming Rachel as his sole executor and beneficiary.

The only assets in Ross’ sole name are his motor vehicle and his personal belongings such as his phone and clothes.

As majority of Ross’ assets were jointly owned with Rachel, upon his death full ownership of these assets automatically transfer to Rachel through the law of survivorship and as a result, fall outside his estate.

Rachel would need to advise the relevant entities and authorities of Ross’ death so that the assets can be recorded as being in Rachel’s name alone.  This could usually be effected by production of Ross’ death certificate.

  1. Low value assets

If a deceased’s assets are of low value.

Financial institutions and share registries have their own thresholds to determine whether a deceased asset is considered to be of ‘low value’ and therefore probate is not required to be produced to them.

As a general rule, banks will usually not require probate if the total funds held in the deceased’s accounts are in the vicinity of $20,000 to $50,000 (this is subject to change at the discretion of the relevant Bank).

Chandler and Monica are married. They are retired and have spent the last 3 years travelling the world together.

They do not own any real property and have no joint assets.

Monica died leaving a valid Will where Chandler is the sole executor and beneficiary.

Monica’s only assets are a bank account with funds of around $15,000 and her personal belongings such as sentimental jewellery and clothing.

Monica’s assets would usually be classified as ‘low value’.

Chandler would need to advise the relevant bank of Monica’s death and provide a certified copy of her death certificate and Will.  The Bank would not require that probate be produced to release Monica’s funds to Chandler.

Can I obtain probate myself?

A personal representative can apply for a grant of probate by themselves however a strict process must be followed to ensure that the Court does not reject the application.

It is strongly recommended that you meet with a solicitor to discuss you options prior to applying for probate.

How we can help you

 JHK Legal can help ease the burden of being a personal representative during the difficult times and ensure that the strict requirements of the probate process have been carried out, if necessary.

If you have any questions or concerns about the following, please give us a call and we would be happy to assist:

  1. Compiling a list of the deceased’s assets and liabilities and determining how the deceased’s property is held;
  2. Reviewing the Will of the deceased;
  3. Determining whether a grant of probate is required and/or recommended in the circumstances;
  4. Making an application to the Court for probate or letters of administration;
  5. Assist in the administration, distribution and finalisation of the estate.

Call JHK Legal on 07 3859 4500 and have a chat about how we can assist you.

Written by Simone Wilson