Welcome to the definitive guide to navigating probate in the State of Queensland.
This guide will answer frequently asked questions about probate and probate law to help explain legal matters for you and your family in your time of need.
Please feel free to navigate to the topic of your interest below:
- What is Probate?
- Who Can Apply For Probate?
- How To Apply For Probate?
- How Long Does Probate Take in Qld?
- When is Probate Required?
- How To Find A Will in Queensland?
- Contesting A Will in Queensland
- Cost of Probate
- What To Look For in A Probate Lawyer
1. What is Probate?
Simply put, probate is the legal process of authenticating the last will of a deceased person and giving the executors authority to administer the estate.
This encompasses tidying up the affairs of the deceased’s estate and organizing their assets — including money and property — as well as other physical possessions to distribute according to the clauses in the deceased’s will as an inheritance.
What Are The Types of Grants When it Comes To Settling An Estate?
There are three main types of grants:
- Grant of Probate with The Will
- Grant of Letters of Administration with The Will
- Grant of Letters of Administration on Intestacy.
What is A Grant of Probate?
A grant of probate refers to the legal document issued by the Supreme Court of Queensland that confirms that a deceased’s will is the last legally valid will.
This document also confirms that the executor named in the will has the authority to deal with the estate of the deceased person which is known as ‘administering the estate’.
What’s The Difference Between Grant of Probate and Letters of Administration?
Where there is a valid will and the executor named in the will is applying, a grant of probate is required.
Where there is a valid will and someone other than the named executor is applying, a grant of Letters of Administration with the will is required.
Where there is no valid will and the authorised person will be an administrator, a grant of Letters of Administration on Intestacy will be required, authorising the administration of the estate according to the rules of Intestacy.
Now that some of the basic legal terminology has been explained, let’s explore who can apply for probate below.
2. Who Can Apply For Probate?
With probate and a legally valid will, the executor that was named in the will (testacy) is eligible to proceed with applying for grant of probate, subject to some exceptions.
If there are many executors named in the will, they will all need to be included in the application as joint executors of a will.
What Does An Executor of A Will Do?
An executor will be required to perform certain duties when executing the wishes of the deceased pursuant to a will.
The executor’s duties may include:
- getting probate from the Supreme Court of Queensland, if required — see ‘when is probate required?’
- finding and notifying beneficiaries — people named in the will who receive something from the estate
- checking and protecting assets
- confirming insurance of assets
- collecting valuables and income
- determining debts and liabilities
- preparing tax returns and getting income tax clearances
- transferring or selling assets
- preparing financial statements
- distributing the estate.
Not sure if you’re eligible to apply for a grant of probate?
Fill out our online probate application form to check your eligibility to
submit a probate application.
3. How To Apply For Probate?
There are 6 major steps when it comes to the probate process in Queensland, namely:
- Obtain death certificate — original copy certified by the Registrar.
- Publish probate notice — needs to be published in the Queensland Law Reporter.
- Serve Public Trustee with probate notice — the probate Notice needs to be served on the Public Trustee of Queensland.
- Objection period — 14 days after publication of the Probate Notice or 7 days after the Probate Notice was given to the Public Trustee (whichever is the later).
- Filing court documents.
- Receiving probate.
4. How Long Does Probate Take in Qld?
The entire probate process typically takes a minimum of about 8 weeks from start to finish, but the actual processing time may be longer depending on how many probate applications have been lodged with the Supreme Court at any given time.
Due to the complexities that can arise during the probate application process, it’s always recommended to engage a probate lawyer to avoid unnecessary delays and help when applying on your behalf.
5. When is Probate Required?
It is important to note that whilst obtaining Probate as such is not a mandatory requirement in the State of Queensland, most organisations have policies that require a certified copy of the Grant of Probate to lawfully transfer ownership of assets to third-parties.
Some of these organisations may include:
- Share registries
- Land and titles department
When researching whether or not probate is required, it’s recommended that you start by asking the organisations who hold the deceased’s assets what their requirements are when it comes to probate.
When is Probate Not Required?
- If the deceased’s estate is small and has little in the way of assets.
- If there is only a property to be transferred to a beneficiary in the Will.
- If the asset (e.g. the family home) is in joint names – because it already belongs to the surviving joint owner.
If the deceased dies without a valid will, it is known legally as ‘dying intestate.’
When this happens, the intestacy rules outlined in Part 3 of the Succession Act of 1981 sets out how an estate would be distributed when someone dies without a will.
Usually, the closest next of kin will apply for the Letters of Administration, but the law also provides a list of other persons that can apply if certain persons are unavailable or unwilling to administer a deceased person’s estate.
6. How To Find A Will in Queensland?
When it comes to finding a will in Queensland, it is not as clear cut as some other Australian jurisdictions.
The Supreme Court of Queensland does not hold Queensland wills.
Only once a will is filed in court — this is preceded by application of Probate — does it become a public document that is viewable on payment of a fee.
Qld Probate Search
In order to find a will with Probate or Letters of Administration of a will or application of a grant, follow these steps:
- Navigate to the eCourts online search facility
- Scroll down to ‘Party details’ and type in the deceased’s name into the appropriate boxes (using the same spelling as any application that has been made)
- Choose ‘Deceased’ or ‘Deceased alias’ from the dropdown menu to narrow the search
- Click Search.
If you’re unable to find anything or no results pop up, it’s very likely that the file you’re looking for has not been filed with the court.
7. Contesting A Will in Queensland
If one begins to think of contesting a will in Queensland, there are most likely two reasons:
- To challenge the validity/legitimacy of the document — any person who is prejudiced by a validity issue can contest a will
- Feel one may have been left without adequate provisions — only the deceased’s spouse, child or dependant, as widely defined in the Succession Act 1981, can make a Family Provision Claim
If making a Family Provision Claim, a written notice of your intention to bring such a claim must be given to the Executor of the will within 6 months of the date of death.
Time really is of the essence when it comes to contesting a will, because if the estate has already been distributed prior to the notice being served, there is usually little that the court can do.
Do you believe you have legitimate grounds to contest a will in Queensland?
Speak to our probate solicitors today to help assess your case.
8. Cost of Probate
There are a number of fees that must be considered when calculating the total cost of Probate from Queensland Probate.
We work with a Fixed Fee Service for anyone that engages one of our solicitors to apply for Probate on their behalf regardless of how much time is spent on the Probate application.
The most you will pay Queensland Probate to lodge a Probate application on your behalf is $1,937.70 (inclusive of GST and outlays).
The outlays we pay for you from the above sum include the following:
|1.||Obtaining a Death Certificate from The Registrar of Births, Deaths and Marriages||$50.40|
|2.||Advertising Costs For The Queensland Law Reporter||$161.70|
|3.||Probate Filing Fees For The Supreme Court||$735.60|
Can Executors Claim Expenses?
Generally, legal and professional fees from real estate agents/accountants/solicitors and the detailed outlays are reimbursable from the estate of the deceased person (within reason depending on the size and complexity of the estate).
There are other expenses that can also be reimbursed:
- Out-of-pocket expenses — related to expenses incurred whilst carrying out the duties of an executor such as parking fees, travel costs and deposits paid for services required by the estate such as cleaning, insurance or the funeral.
- Time and effort whilst executing duties — ONLY if:
- The Will authorises payment to you;
- the beneficiaries, generally the residuary beneficiaries, authorise payment to you; or
- you as the executor apply to the court for payment of commission based on the nature of the estate you are administering.
9. What To Look For in A Probate Lawyer
When it comes to finding and selecting a lawyer for your case, it’s important to know that you do not have to use the same lawyer who drafted the deceased’s will.
There are many reputable probate lawyers in the State of Queensland, but before you make a decision it is important to consider a couple things:
- Are they transparent about their fees?
If you contact a Probate solicitor to obtain a comparison quote regarding their fees and outlays for a Probate application, make sure they include the outlays and any other additional fees that they may charge (i.e, postal, photocopying) — so that you can truly compare the value to Queensland Probate.
- Interview the lawyer
In order to better understand if the lawyer is equipped to handle your case, ask them a few questions:
- How many probate cases have you handled?
- How long will the entire process take?
- What does your pricing structure look like? Is it a fixed fee service?
- Do legal assistants in your office do some of the work or will I have a dedicated lawyer handling my case?
- Are they a probate lawyer near you?
In-person interviews are always going to be highly personal and will give you a good feel for level of knowledge and expertise, as well as whether they’ll be a good ally for you during what is a difficult time — establish what the level of support is that you can expect.
This will also help to cut down time and expenses wasted traveling distances so you can focus on your life and getting through the legalities with as little pain as possible.
Start Your Probate Application With Queensland Probate Lawyers
By now you should have a relatively good understanding of what probate is, but obtaining probate can be a complex and time-consuming process that will be more trouble than it’s worth if you go at it yourself.
Queensland Probate has a team of highly experienced probate lawyers in Brisbane who offer dedicated lawyers for those looking to draft a will, apply for Probate/Letters of Administration, administer an estate or contest a will.
Check your eligibility to apply for Probate online here or contact us to schedule an appointment at our offices.