When is Grant of Probate Required or Not Required in Queensland?

When is probate required or not required in Queensland? These are the two questions we hear most from our clients. In lieu of this, we’ve written a comprehensive breakdown explaining when Probate is required or not. 


What is Grant Of Probate?

A grant of probate is when the Supreme Court recognizes a will as legally valid in Queensland. If there is no will or the executors named in the will are not able to act, the Supreme Court can grant letters of administration. Letters of administration allows personal representatives to handle the deceased’s estate. You can read more about how to find a deceased’s will on our FAQ page


How Many Types of Probate are there in Queensland?

 

There are 3 main types of probate one can apply for in Queensland:


  1. Grant of letters of administration when there is no Will – this is required when there is no valid Will, which is referred to as the dying intestate.
  1. Grant of letters of administration of a Will – this is necessary when there is a valid Will and someone other than the executor named in the will is making the application. A hypothetical example of this is when the executor named in the will is incapacitated, deceased or otherwise unwilling or unable to act as executor. 
  1. Grant of probate – this is when a valid will exists and the executor or executors named in the will are moving ahead and making the application.

The 3 types of probate each have their own specific requirements that must be strictly adhered to before the Court will sign off and issue a grant. The process, however, is similar for all three types of Probate. 


Who Can Apply For Grant Of Probate in Queensland? 

Many people may believe that they can rightfully apply for a grant of probate. So, if you believe that you can and should apply for a grant of probate, the rule of thumb is to first rule out any other person claiming a prior right. You can do this by filling out a 105 Form – Affidavit supporting probate application providing clear evidence that the person with the prior right are now deceased or incapacitated or have renounced their claim or interest in the will.

Learn more about Probate In Queensland – A Definitive Guide To Navigating Probate in Queensland


When Is A Grant Of Probate Required in Queensland?

Determining whether probate is or is not required in Queensland depends largely on your role as executor and whether there is a will in existence or not. As the executor of a deceased estate, you could require probate before you’re allowed to take control of the estate’s assets, also referred to as administering the estate.  

Whether probate is required will also depend on what property the deceased owned and what that ownership looked like. Your first action should be to contact the organization involved (e.g. bank, attorney) to ask whether you will need a grant of Probate.

Probate is beneficial when dealing with an estate as it provides any personal representatives with protection to deal with the deceased’s assets. On top of that, it provides protection to third parties like banks or other financial institutions so they know they are dealing with the correct personal representative of the estate, which usually speeds things along significantly. 

For example, you may need a grant of probate when some people or organisations holding assets of the estate will not release them without providing a grant of probate. 

Grant of probate is also required in the event of a contested will, which is a separate issue that you can discuss with our solicitors

However, you don’t necessarily need to apply for probate, and it could be that you don’t need probate to carry out the terms of a will. 


When is Probate Not Required in Queensland

Probate is not always required and depends on the circumstances, as previously stated. Below are a few scenarios where probate would be very unlikely:

The Assets are of low value

If a deceased’s assets are of low value you might not need probate. However, share registries and financial institutions have their own thresholds when establishing whether the assets are considered ‘low value’ and if probate is not required.  

Generally, banks won’t require probate if the total value of the funds in the deceased’s account is between $10,000 to $50,000 but this is subject to the discretion of the relevant bank.

Scenario: 


Claire and Phil were married for many years. They decided to retire early and spent the last three years of their life in a hut in Bora Bora. They own no real property and zero joint assets and even sold their car. 

Claire passed away and left a valid will making Phil the sole beneficiary and executor. Claire has only $17,000 in her bank account and this is her only asset besides a few small pieces of jewellery and mementoes. In this case, Claire’s assets would likely be considered as ‘low value’. 

Phil now needs to advise the bank where Claire’s funds are held of her passing and provide them with a will and death certificate. In all likelihood, the bank would not ask Phil to produce probate in this case. 


Joint assets

In this case, if all or the majority of the deceased’s assets are jointly owned with someone else listed as a joint tenant. 

Scenario:  


In this case, if all or the majority of the deceased’s assets are jointly owned with someone else listed as a joint tenant. 

Scenario:  

Jay and Gloria are married. They own several properties together as joint tenants including a large family home and a family beach house. They also have joint bank accounts and share a portfolio.

Jay passed away and left a final will naming Gloria as the sole beneficiary and executor. The only thing Jay had in his sole name was a vintage Triumph motorcycle and a few signed rugby balls a few mobile phones, watches and other small personal belongings. 

Seeing as the majority of Jay’s assets were jointly owned with Gloria, full ownership of those joint assets would automatically transfer to Gloria through the rule of survivorship.

Gloria would need to advise all the relevant authorities and entities of Jay’s passing in order for the assets to be transferred and recorded in Gloria’s name alone. A death certificate is usually the only evidence required and thus Probate is not required.


Can You Obtain Probate Yourself? 

Yes, an executor can apply for a grant of Probate in Queensland. However, it’s a strict and complicated process and depending on the situation it can be more complicated than anticipated to ensure the Court does not reject your application.

Probate doesn’t need to be complicated and it’s why we’ve built our entire practice around Probate with fixed-fees to remove any elements of surprise in obtaining a grant of probate. 

Read more about Probate from our Probate FAQ Section or Contact Us Directly to speak with one of our Probate experts.

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