Applying for a grant of probate is an important step for an executor in administering a deceased person’s estate. In Queensland, probate ensures the Supreme Court formally validates the Will, allowing the estate to be distributed by an entitled person, in line with the deceased’s wishes.

Executors should seek appropriate legal advice to avoid delays and complications during this process.

Below are six key questions an executor should consider before applying for probate:

1. Is it a valid Will?

Before applying for probate, it is essential to confirm the deceased left a valid Will. Generally, for a Will to be valid, it must:

• be in writing;
• signed by the Will-maker in the presence of at least two witnesses who are present at the same time; and
• reflect the Will-maker’s intention to create their Will.

When a Will is not made in accordance with the formal requirements, an application will need to be made to the Court for the ‘Will’ to be found valid. This will involve significant cost on the estate and delay in the administration. It may also involve potential disputes between family members about the effect of that informal document.

The Will-maker must have been over 18 years old and have had testamentary capacity when creating the Will. Testamentary capacity means the person understood the nature and effect of making a Will and was of sound mind.

If a valid Will does not exist, the estate will be distributed according to the rules of intestacy, which determine who can administer the estate and how assets are distributed.

2. Who should apply for probate?

The executor named in the Will is typically the appropriate person to apply for probate.

If no executor is named, or the named executor is unwilling or unable to act, the Court may appoint an administrator. In such cases, the administrator is often the primary beneficiary or another eligible person, or the Court may appoint an independent administrator.

3. Are there multiple executors?

When multiple executors are named in a Will (known as co-executors), they can apply for probate jointly. An executor is not obligated to take on the job. If one executor does not wish to act, they may renounce their role by signing a formal renunciation document as part of the application process.

If a co-executor is unwilling to act but does not renounce their position, the remaining executors can apply for probate with ‘leave reserved’ for the other executor. This means the non-acting executor can apply for probate later if needed.

4. Should I provide a copy of the Will to the beneficiaries?

Providing a copy of the Will to the beneficiaries is often advisable to ensure transparency about the deceased’s wishes. Keeping open communication may help manage expectations and reduces the likelihood of disputes.

Under Queensland law, certain people are entitled to inspect or receive a copy of the Will, even before probate is granted. These include beneficiaries, people entitled under intestacy laws if the Will is invalid, and others with a claim on the estate.

Whilst any person can obtain a copy of the Will from the Court after probate is granted (as the Will becomes a public document), it is often prudent to comply with such a request when it is received in instances where the person is legally entitled to see the Will.

5. Do I even need a grant of probate?

Not all estates require probate. Whether probate is necessary depends on the estate’s size, complexity, and the types of assets involved.

Therefore, it is important to first understand the extent of the assets and liabilities that forms part of the estate (including property, bank accounts, shares, personal items, mortgages, credit cards, personal loans, etc.).

Generally speaking, probate is required if the deceased owned:

• real estate;
• significant shareholdings; or  
• substantial funds in a bank account.

Financial institutions and asset holders may require a certified copy of the grant of probate and the death certificate before releasing the deceased’s assets.

It is therefore important that an executor, or the solicitor handling the estate on their behalf, contacts each asset holder or institution directly to understand the specific requirements that need to be meet.

An executor should also keep detailed records of all estate transactions, including receipts, correspondence, and a timeline of actions taken, to maintain transparency.

6. Is there a risk of a claim against the estate?

During the probate process, potential claims against the estate may arise.

For example:

• family members or dependents may make a family provision claim if they believe they were unfairly provided for or excluded from the Will; or
• a beneficiary or other party may lodge a probate caveat, alleging the Will is invalid due to a lack of testamentary capacity or undue influence.

Such claims can delay estate administration and distribution. Executors should be proactive in seeking legal advice if they anticipate any disputes.

Seek advice

Navigating the probate process can be complex, particularly in larger or contentious estates.

Executors should ensure they understand their legal obligations and seek professional guidance to avoid unnecessary complications.

If you need assistance with the probate process or any aspect of estate administration, contact us for advice to ensure the estate is managed smoothly and efficiently.