estate services qld

Most people have heard the term probate but may not be completely clear about what it is or whether they really need to go to the effort of getting probate.

Probate is a grant of representation issued by the Supreme Court, confirming the executor has authority to administer the deceased's estate under their will.  A copy of the will is annexed to the grant of probate, confirming the validity and the terms of the will. The grant of probate is the authority asset holders rely on to give you the deceased's assets on behalf of the estate.

Whether or not you have to obtain a grant of probate to administer the estate depends on the requirements of the asset holders you have to deal with.  Some types of assets will typically require a grant to pay out the asset to the estate, (for example, a Refundable Accommodation Deposit (RAD) held by an aged care facility typically requires a grant to refund the deposit to the estate). Other asset holders may have a threshold requirement as to whether or not they require a grant of probate to pay out the asset.  For example, a bank may have a threshold requirement whereby a balance of $50,000 or more in the deceased's bank account/s requires a grant for the proceeds of the account to be paid to the estate.  A balance below this threshold balance may not require a grant, or it may require a grant based on other conditions being met. Different banks have different requirements, and all asset holders are entitled to ask for a grant before they will deal with an executor 

There is another good reason to obtain a grant of probate, even if it is not mandated by the asset holders, and this is to protect you as executor. A grant of probate is an authority from the Supreme Court confirming that at the time of the application to the court, no other person has a later valid will or better standing than you to administer the estate.  If then, some later will is found, or a dispute arises, and you have acted in good faith in accordance with the grant under the terms of the will, your actions ought to be protected. This is why we recommend you obtain a grant of probate.

If the deceased died without a will, or the last will of the deceased does not validly name an executor, an individual may apply for letters of administration.

Letters of administration is a grant of representation issued by the Supreme Court, naming an administrator and giving them authority to administer the deceased's estate under the laws of intestacy (no will) or under the terms of the will (will that does not validly name an executor).  If there is a will, it is annexed to the grant of letters of administration, confirming the validity and the terms of the will. The grant of letters of administration is the authority asset holders rely on to give you the deceased's assets on behalf of the estate.

Where there is no will, the person who should apply for letters of administration is the person who has the highest priority to benefit from the estate under the laws of intestacy. Priority is given to family members in the following order:

• the deceased's spouse;
• the deceased's children, and/or for their children who have died leaving children, those children (the deceased's grandchildren);
• the deceased's parents (only if no higher priority person);
• the deceased's next of kin, being their siblings, uncles or aunts, nephews or nieces (only if no higher priority person).

Sometimes a deceased leaves an otherwise valid will that effectively has no executor. This might be because the executor has since died or lost capacity.  The will may invalidly appoint an executor (for example, a joint appointment where the drafting does not appoint a surviving executor successively). If the will does not validly appoint an executor, the above priority order applies for an administrator to be granted letters of administration.

An administrator has the same rights and liabilities as an executor named in a will. Once a grant of representation is obtained, the process is essentially the same, except for some further advertising requirements prior to distribution under a grant of letters of administration.  We can assist with each of the steps involved.