Queensland Queensland

When is Probate Required in Queensland ?

The Administration and Probate Act 1919 sets out the laws regarding probate in Queensland. Probate is the process of will approval, therefore, it is essential to have a will in order to apply for a grant. This ensures that the Probate Registry of the Supreme Court of Queensland validates the deceased’s last will. The payment of any debts or dues to the creditors are then made once this process is carried out. 

This grant enables the executor to legally administer the deceased’s estate so, it is essential to acquire a probate before any distribution or payment decisions are taken. 

You might need a grant of probate in cases where the assets of the deceased’s estate are held by organizations that are unwilling to release the assets to the executors without the probate.

However, a probate application is not always necessary therefore, you can check out the terms mentioned in this blog below to find out whether a probate is required in Queensland or not. 

Types of grants: 

There are 3 major types of grants:

  • Grant of probate: is applied by the executor when the will left by the testator is valid. 
  • Grant of letter of administration of the will: letter of administration in SA is applied by someone mentioned in the will other than the executor in case of a valid will where the authorized person would be the administrator. 
  • Grant of letter of administration on intestacy: in case of an invalid will, the authorized person would be the administrator where the estate would be looked after according to the intestacy rules. 
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Is there a need for probate in Queensland?

You must take the organizations such as financial institutions into consideration while deciding whether you need to have a grant of probate or not. Well, you may not require a grant of probate if:

  • The value of the testator’s assets in the estate are very small. 
  • The real estate would be transferred to a beneficiary mentioned as per the will. 
  • You need to sell the real estate. 
  • When the assets are jointly owned as those would be automatically transferred to the surviving joint owner. 

Now, let’s understand this concept in detail.

There are no legal requirements in Queensland to attain a probate however, the personal representative or the executor might want to obtain a probate for:

  • Personal protection: probate can appear to be quite helpful for an executor as it would provide protection to them from personal liability and any claims that they tried to intermeddle with the deceased’s estate in cases where there was some other Will or the personal representative should not have been dealing with the assets of the estate.

This could also appear to be essential in certain estates where the estate could be a subject of family provision application. 

  • Dealings with others: the assets might not be released by certain organizations such as banks, share registries, age care homes and superannuation funds to the executor until and unless the probate is granted by the Supreme Court.  

Given below are some scenarios where a probate may not be required:

  • Jointly owned assets: you may not require to obtain a probate when almost all of the assets under the estate are jointly owned with someone else as joint tenants. For eg there are 2 joint owners who jointly own the family home, hold all bank accounts together and have a joint share portfolio. 
  • Low value assets: the executor may not need to acquire a probate if the assets under the estate are very small and are of low value as the financial intermediaries and share registries have their own threshold levels to indicate whether the deceased’s assets are termed as low value or not. 
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Generally, as per the rules, the banks might not need a probate if the entire funds held in the deceased’s accounts are in the vicinity of $20,000 to $50,000 which however, are subject to changes at the discretion of the relevant banks

Who can apply for a probate?

The grant of probate can be applied by a personal representative or an executor by themselves by following a strict procedure so that the Court doesn’t reject their application. 

It is therefore advisable to appoint a solicitor who would help you out with the process of application. 

There are a lot of people who consider themselves as eligible to apply for a grant of probate however, you they must rule out any other person trying to claim a prior right in the will by filling Form-105- Affidavit (probate application). This would ensure and provide evidence that they have nullified their claims or interests in the will or have incapacitated and died. 

Therefore, it is important to take assistance from the best professional consultants in Queensland in order to make the process of probate application easier and quicker. Hence, we at Probate Consultants have the required expertise and a logistic approach to deal and related well with our clients and answer all of their queries patiently.  So, get in touch with us today and finalize the matters related to your estate in a sensible and efficient manner.  

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