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What is a Grant of Probate?

What is a grant of probate of a Will?

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.

What sort of grants of probate are there?

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 you obtain a grant of probate then a range of legislative protections are enabled to protect you. This includes:
    • If you began administering an estate on the basis of a Will but it was later discovered that there was another Will then you may be personally liable for administering under the wrong Will. If you had a grant of probate then even if it was the wrong Will, you would be protected.
    • If you distributed the estate without a grant of probate and a debt owing by the deceased was later discovered then you may be personally liable for that debt. However, if you had a grant of probate, you would be protected from liability.
    • If you distributed the estate and someone later brings a claim against the estate or contests the Will, you may be personally liable. However, if you had a grant of probate, you would be protected from liability.
  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.
    • Sometimes whether a grant of probate is required or not will depend on the value of the holdings held by the entity – for example, every bank has a standard limit for bank accounts where they will automatically require that a grant of probate be produced. The limit differs between banks with the lowest that we know of being $10,000.00.

When might probate not be required?

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

Joint assets

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

For example:

    • Jack and Jill are married. They own the family home together as joint tenants, hold all bank accounts jointly and have a joint share portfolio.
    • Jack died leaving a valid Will naming Jill as his sole executor and beneficiary.
    • The only assets in Jack’s sole name are his motor vehicle and his personal belongings such as his phone and clothes.
    • As majority of Jack’s assets were jointly owned with Jill, upon his death full ownership of these assets automatically transfer to Jill through the law of survivorship and as a result, fall outside his estate.
    • Jill would need to advise the relevant entities and authorities of Jack’s death so that the assets can be recorded as being in Jill’s name alone.  This could usually be effected by production of Jack’s death certificate.

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 $10,000 to $50,000 (this is subject to change at the discretion of the relevant Bank).

For example:

    • Bec and Ben 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.
    • Bec died leaving a valid Will where Ben is the sole executor and beneficiary.
    • Bec’s only assets are a bank account with funds of around $15,000 and her personal belongings such as sentimental jewellery and clothing.
    • Bec’s assets would usually be classified as ‘low value’.
    • Ben would need to advise the relevant bank of Bec’s death and provide a certified copy of her death certificate and Will.  The Bank would not require that probate be produced to release Bec’s funds to Ben.

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.

Typically, the costs associated with a grant of probate and obtaining advice about the administration of the estate are paid out of the estate (you dont need to pay the costs yourself). Sometimes it is best to seek advice simply for your own protection.

How we can help you

Swanwick Murray Roche 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 Swanwick Murray Roche on 07 4931 1888 and have a chat about how we can assist you.