WHAT IS PROBATE
A Grant of Probate is recognition by the Supreme Court of Queensland that a Will is the last legally valid Will of a deceased person.
The recognition of the Court allows the Executor to take control of the assets of the Deceased Estate and gives that person the authority to deal with the world at large in relation to the distribution of the deceased's property.
In recent years the need for a Grant by the Courts has been relaxed although need for Probate in any Estate is largely governed by the attitude of financial institutions (such as banks), Insurance companies and the like. An application for a Court Grant is still however necessary in a large number of cases.
Without a Grant by the Court, the Executor can be personally liable to disappointed beneficiaries. It is not a course that should be taken lightly. To determine whether a Grant of Probate is needed, the Executor must contact the organisations with which the deceased held assets to determine the organisations' requirements for transfer of those assets to the Executor or the beneficiaries.
An application to the Court incurs costs in advertising of the application in a newspaper, Court lodgment fees and legal costs. The steps involved are as follows:
- 1. Advertise the intention to apply for Grant of Probate in a local newspaper and Queensland Law Reporter;
- 2. Serve notice of the Intention to apply for Grant of Probate upon the Public Trustee;
- 3. Prepare affidavits for signing by the Executor and any person renouncing any right; and
- 4. After expiry of the 14 day notification to the Public Trustee, file application documents with the Supreme Court of Queensland.
After obtaining the Grant of Probate by the Court, the terms of the deceased‘s Will can be applied and the Executor can attend to the finalisation of the Estate by closing banks accounts, transferring shares and real estate, motor vehicle ownership, lodging tax returns etcetera and distribution of the assets.
WHAT IF THERE IS NO WILL?
If the deceased did not have a Will, then their family should seek legal advice as soon as possible. An application should be filed in the Court for Letters of Administration, which will appoint an Executor with the authority to deal with the Deceased Estate and will allow the Estate to be finalised and assets distributed in accordance with State laws of intestacy.
Here at Briese Lawyers we can provide assistance and support during the finalisation of a loved one's Estate, with sensitivity and respect.
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This fact sheet is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.