When someone passes away, often a key term that arises, is probate. However, many people do not understand what it is and why it might be needed.

Below are some answers to frequently asked questions we receive in relation to the probate process in Queensland:

What is probate?

Probate is a grant issued by the Supreme Court of Queensland which confirms the validity of the last Will of the deceased and gives authority to the appointed executor(s) to administer an estate.

A grant of probate is a document produced by the Court after the application of probate has been submitted to the Court for assessment.

Once obtained, the executor can call in funds made payable to the estate, attend to paying estate liabilities and distributing the remainder of the estate to the beneficiaries.

You will find that many companies and groups require a grant of probate in Queensland to release estate funds and to transfer estate property (generally speaking, any assets valued over $50,000).

Is probate mandatory in Queensland?

No, you do not always need a grant of probate to administer a deceased’s estate in Queensland. However, if the organisations the deceased person held assets or funds in ask for probate, then it is often hard to avoid.

Most organisations have policies requiring third parties to produce a certified copy of the grant once their member or client has passed away. We find that banks, nursing accommodation providers, share registries and the QLD Titles Office are the most frequent entities who request a grant of probate.

How long does it take to get a grant of probate?

14 days must lapse from the date of lodgement of the notice of intended application to apply for probate in the Queensland Law Reporter before the application can be signed and submitted to the Supreme Court for processing.

The Supreme Court of Queensland then takes about 1 month to process probate applications. This will depend on the Court’s current workloads, and how complex the application is.

What is the deadline to apply for probate?

Whilst there is not a strict deadline, an executor has a fiduciary duty to the estate to administer it in an efficient manner.

Given the potential delays associated with probate application processing, we recommend that executors apply for probate (if required) as soon as practically possible

Where can the deceased’s last Will be found?

Whilst there is no Will registry, original Wills are most commonly found in the safe custody of the solicitor who may have drafted the Will on behalf of the deceased.

Thorough searches should also be performed at the deceased person’s residence, and in their personal papers. Accountants, banks and the Public Trustee of Queensland should also be contacted to check whether they were holding any safe custody documentation on behalf of the deceased.

My loved one did not leave a Will – what can I do?

If a Will cannot be found, a family member making the application known as Letters of Administration, which will give the appropriate relative the power to administer the estate without a Will.

This is the name of another Queensland grant which is issued when no Will was left. The appointed administrator will obtain similar powers to executors named in Wills once a grant of Letters of Administration is obtained.

What if the original Will cannot be found?

If only a photocopy or scan of the Will is able to located, you can apply to the Supreme Court of Queensland to have judge issue probate of a copy of a Will.

However, this is a complex application which involves, among other things, producing evidence to overturn the Court’s assumption that the Will was intentionally destroyed by the Will-maker. It is important you seek advice from an estate lawyer to guide you through this process.

What if another law firm holds the original Will of the deceased?

The acting solicitor for the estate will be able to obtain the original Will from any law firms holding the original Will, with consent and authority of the executors named in the Will.

Even if the Will itself states that a particular lawyer or law firm is to be used, such terms are not legally binding.

Do I have to act as executor? Do I have a choice?

You are not legally obliged to perform the role of the executor.

Your role as executor can be renounced, allowing another named executor in the Will to perform the necessary executorial duties, to apply for probate and to administer the estate. If there is no reserve (alternate) executor named in the Will, then someone will have to apply to the Supreme Court to be appointed administrator of the estate.

Where should the estate funds be held during administration?

Estate funds should generally be consolidated in one estate account. This is most often either a solicitor’s trust account or a deceased estate account that can be set up at a bank which either the executor uses, or the deceased used.

However, it is worth noting that a bank may not be prepared to open an estate account until such time as the executor has obtained a grant of probate.

Am I expected to administer an estate by myself? Should I get legal advice?

We recommend you seek advice from an appropriately qualified estate lawyer to guide you through the administration of a deceased’s estate.

An estate lawyers can outline all your roles and responsibilities whilst administrating the estate and can assist you with making an application to the Supreme Court for a grant.

If you need assistance in the administration of the estate or need further clarification on the probate process and whether or not it will be required, please do not hesitate to contact us.