Guide to Probate in Queensland

Introduction to Probate

What is ‘Probate’?

Probate is the approval granted to an Executor of a Will by the Supreme Court. A Grant of Probate confirms that the Will submitted for Probate by the executor is the most recent and valid Will of the deceased.

Obtaining a Grant of Probate also means that the Court has formally recognised the authority of the executor to manage the estate of the deceased, in accordance with the instructions and wishes in their Will.

You can only apply for Probate if you are an Executor named in the Will.

Why do I need Probate?

In most cases, without a Grant of Probate, the Executor will be prevented from accessing and managing the assets of the estate (i.e. bank accounts, share accounts, property and other assets).

Occasionally, the Executor of an estate will not require Probate to access and distribute the estate’s assets, but Probate is normally required. Probate may not be required in the following situations:

• All assets owned by the deceased were held as joint tenants (also known as joint proprietors)
• The estate has minimal assets (this depends on the organisation, and is usually considered on a case-by-case basis)
• There is no Will (if this is the case, please see below ‘What if there is no Will?’)

What is my role as Executor?

If you have been named the Executor to someone’s Will you may have some idea of what that involves. But challenges can still pop up that require you to deal with any financial or legal complications.

It is the Executor’s responsibility to administer the estate. If more than one Executor is appointed in the Will, the Executors must act jointly (i.e. together). If one of the appointed Executors does not wish to accept this responsibility, then they will need to renounce their appointment.

If you are a back-up or substitute Executor, you can only apply for Probate if the primary executor is unable to act.

As Executor, you will generally be required to:

• Locate the Will
• Organise and carry out funeral arrangements
• Obtain a death certificate
• Notify utility providers and financial institutions of the death
• Redirect post and contact financial institutions to put a halt on any direct debits
• Find and contact beneficiaries, and keep them updated on the estate administration process
• Contact financial institutions, service providers and government agencies to validate the deceased’s assets and liabilities
• Create an inventory of the estate including cash, real estate and securities, insurance policies, superannuation, outstanding work entitlements and any personal and household effects
• Keep records of any financial and administrative transactions incurred during the estate administration process
• Provide a distribution report to each beneficiary
• Gather important documents and fill out the paperwork to apply for a grant of Probate with the Supreme Court
• Pay off any debts, taxes and other expenses incurred for burial or funeral arrangements
• Distribute the remainder of the estate to beneficiaries including paying legacies, establishing testamentary trusts, and bequeathing gifts or donations
• Prepare account and tax information for beneficiaries after Probate is granted

You can review a detailed list of tasks traditionally required of an executor by downloading our complimentary Executor Checklist.

Do I need a lawyer to apply for a grant?

There is no requirement that you use a lawyer to apply for Probate, and there are online resources that can help guide you through the process.

Most people, however, choose to use a lawyer because it is a technical legal process that can be complex, and if not done correctly could result in personal liability for the executor. Because of this, it is generally recommended to engage a lawyer for advice.

As part of preparing and lodging a Probate application, you will be required to swear or affirm an Affidavit and may require certified copies of documents. These are services that most lawyers offer as part of their Probate service and can help make the process of applying for Probate less complicated.

What if there is no Will?

If there is no Will, it is still possible to apply to the Supreme Court for authority to deal with a deceased person’s assets.

If a person dies without a Will (known as “dying intestate”), the deceased’s next of kin needs to make an application for ‘Letters of Administration’ rather than Probate.

There is slightly more complexity involved, but the process is largely the same. To find out more about obtaining a Grant of Letters of Administration, please visit our QLD Guide to Letters of Administration.

Steps required for Probate

The process of obtaining Probate requires the executor to make an application with the QLD Supreme Court, and generally involves publishing an online notice and lodging a set of documents with the Court. The Court will review the documents and if all the information has been correctly prepared, the Court will make a Grant of Probate.

Locate important documents and information

As explained above, it is the Executor’s role to locate the original Will, obtain a death certificate, and contact financial institutions, service providers and government agencies to validate the deceased’s assets and liabilities.

These documents and important pieces of information will all be required for the Probate application. You should not lodge a Notice of Intended Application until you are in possession of the original Will and death certificate.

As part of applying for Probate, you may also require copies of death certificates for any beneficiaries named in the Will who have predeceased the deceased, and/or birth certificates for any surviving children of beneficiaries named in the Will who have predeceased the deceased.

Lodge a Notice of Intended Application

A Probate Advertisement publicises the Executor’s intention to apply for a Grant of Probate of the deceased’s last known Will. It also provides any creditors of the deceased with an opportunity to make their claims on the estate known to the Executor.

The Notice should be prepared in line with the court-approved Form 103 – Notice of Intended Application for a Grant of Probate.

The Notice is published in the Queensland Law Reporter (QLR) and the fee for publishing the Notice is $161.70 (as at time of publication). The QLR is published every Friday, and the cut-off for being in the next edition is the Monday prior.

The relevant legislation requires that the Notice be published at least fourteen (14) days before an application for a Grant of Probate is made by the Executor. This 14-day Notice period commences from the Friday the Notice is published in the QLR, not the day that it is submitted to their office.

Once the Notice is published in the QLR, a copy must be sent to the Qld Public Trustee via email for their records.

Identify assets and liabilities

As explained above, it is the Executor’s responsibility to create an inventory of the estate including cash, real estate and securities, insurance policies, superannuation, outstanding work entitlements and any personal and household effects.

In QLD, there is no requirement to file an Inventory of Assets and Liabilities as part of the Probate application. However, you will require details of the deceased’s assets when it comes time to administer the estate.

Court application

Required forms

The forms required for a standard Probate application in QLD are as follows:

• Form 101 – Application for Probate
• Form 104 – Affidavit of Publication
• Form 105 – Affidavit Supporting Application for Probate
• Form 47 – Certificate of Exhibit (required for each annexure)

It is important that you take great care when preparing these documents, or when reviewing them if they are prepared by a lawyer.

In particular, you need to pay close attention to the Affidavit of Executor. When you sign an Affidavit, you are swearing or affirming the truth of its contents. As such, you must carefully review and approve the document before signing it. If you do not agree with something in the Affidavit (or any of the documents), you should contact your lawyer so the document can be amended accordingly.

Signing appointment

Only an authorised witness can witness you sign your Affidavit. Authorised witnesses include:

• Lawyers
• Barristers
• Notary Publics
• Justices of the Peace

You should pay careful attention to the instructions provided to you for signing the Probate application. Most errors with Probate applications arise in the signing of the documents because people do not follow the instructions provided.

Probate lawyers, such as the team at Safewill Legal, specialise in the preparation and signing of Probate applications. If you engage a Probate lawyer, you can feel confident that your application has been prepared and signed properly and in accordance with the relevant legislation and rules.

Filing fee

In QLD, the court filing fee is fixed at $793.00 (as at time of publication). This fee does not change depending on the value of the estate.

The court filing fee can be paid by credit card over the phone, directly with the Supreme Court. When lodging the application, instructions should be provided to the court regarding who they should call, and on what telephone number, to obtain payment.

Alternatively, you may include a bank cheque for the sum of $793.00 with the application, made out to the “Department of Justice and Attorney-General”.

Lodgement

Once the documents have been signed, you will need to collate the documents for lodgement:

• Original signed Form 101 – Application for Probate
• Original Will (do not remove any original staples)
• 1 x clear photocopy of the Will
• Original signed Form 105 – Affidavit Supporting Application for Probate
• Original signed Form 47 – Certificate of Exhibit for Annexure A, with 1 x clear photocopy of the Will attached (in addition to the photocopy referred to above)
• Original signed Form 47 – Certificate of Exhibit for Annexure B, with the original death certificate attached
• Original signed Form 104 – Affidavit of Publication
• Original signed Form 47 – Certificate of Exhibit for Annexure A, with a copy of the QLR Notice attached

Time frame

It normally takes the QLD Supreme Court 4 weeks to review the application and make a Grant of Probate.

If there are any issues with the application, or if further information is required, the court will send you a requisition. A requisition is a request for further information or documentation. Most requisitions can be resolved in a straightforward manner.

Obtain the Grant

Once your application is approved by the court, you will obtain a formal Grant of Probate.

The Grant will be a set of bound pages, starting with a cover page, containing the court’s seal, followed by a copy of the Will.

Administer the estate

Open estate bank account

In most situations, an Executor may need to set up a bank account in the name of the Estate to fulfil their duties. To set up an estate bank account, the bank will likely require certified copies of the Grant of Probate and death certificate.

As assets of the estate are redeemed and accounts closed, you should have the funds from these accounts paid into the newly established estate bank account. This will assist with record-keeping and helps ensure that no funds are misappropriated for personal use (either by mistake or intentionally).

Estate tax return

Depending on the assets of the estate, and how they are being dealt with in the administration of the estate, an estate tax return may be required.

It is recommended that you engage an Accountant to assess whether an estate tax return will be required, and if so, to prepare the relevant paperwork for lodgement with the Australian Tax Office.

Arrange payment of liabilities

The executor is responsible for arrangement the payment of outstanding funeral and estate expenses, as well as any outstanding debts or liabilities of the deceased (including tax liabilities). These amounts can be paid from the estate bank account.

It is important to note that all liabilities and estate expenses must be paid before funds can be distributed to beneficiaries.

Distribute the estate

In Queensland, it is highly recommended that you do not distribute any estate assets to beneficiaries until the expiration of six (6) months from the date of death. During this period, creditors of the estate or eligible persons who wish to commence a family provision claim, should come forward.

If this six (6) month period is not observed, and an Executor distributes the estate too early, they may be personally liable to satisfy any outstanding estate liabilities and debts.

Once the six (6) month period has expired, all liabilities and estate expenses have been paid (and on the assumption no creditors have come forward, and no one has commenced a family provision claim), you may arrange to distribute the residuary estate to the beneficiaries named in the Will.

If there is an estate property to be transferred to a beneficiary (or beneficiaries), you will need to engage a property lawyer or conveyancer to complete the relevant transfer paperwork. Alternatively, it may be that you and/or the beneficiaries decide that the property should be sold. In this case, the proceeds of sale of the property would be distributed to beneficiaries in accordance with the Will.

Depending on the assets of the estate, there may be a need to engage other professionals to assist you in dealing with and distributing the assets of the estate. If you are unsure of any aspect of administering the estate, it is best to obtain legal advice.

End of matter

Once Probate is granted, all liabilities of the estate have been paid, and all assets of the estate have been distributed, your role as Executor will cease. However, it is important that you retain all documents and information relating to your administration of the estate somewhere safe in case they are ever required again.