The process of obtaining probate

Probate is a grant made by a Court that ‘proves’ the Will of a deceased person and vests title to estate assets in the executor/s, allowing the executor to deal with the deceased’s estate.

As the legal personal representative of the deceased, the executor must determine the assets and liabilities, liaise with debtors, creditors and beneficiaries, sell, transfer and distribute assets and finalise the estate in accordance with the Will.

The executor is often guided by a lawyer who provides professional advice to minimise liability and to deal with any complications or claims made on the estate.

If the deceased died without a valid Will or the Will appointed an executor who is unable to fulfil that position, an interested person (usually a spouse, partner or child) may apply for letters of administration.

This article explains the process of obtaining a grant of probate where there is a valid Will, and what is involved in administering the estate. The information is general only and we recommend obtaining professional advice relevant to your particular circumstances.

Is a grant of probate necessary?

There is no statutory requirement to obtain probate and a grant may not be necessary for small estates. Property held jointly may be transferred to the name of the surviving owner/s by lodging the appropriate documents with the relevant authority.

Banks, financial institutions and share registries may release small amounts without probate on production of the death certificate and proof of those entitled to the funds, and an indemnity releasing them from future claims. The relevant enquiries should be made with each entity.

Unless the estate is small, simple and there is no risk of a claim being made against it, an executor will generally seek an application for a grant of probate. A lawyer can advise whether a grant of probate is necessary or recommended.

Process

A notice of intention to apply for a grant must be published at least fourteen days before the application is made to the Supreme Court. The notice is required to warn interested parties (creditors, family provision claimants) of the application and provides an opportunity for the relevant claim or objection to be lodged.

The following documents are filed with the Court:

• Application for Probate;
• Original Will and death certificate;
• Affidavit in support of Application;
• Affidavit of Publication and Service.

The affidavit sets out the relationship between the deceased and the executor, identifies the Will and death certificate and, if relevant, vouches for the deceased’s signature on the Will. The affidavit may include specific information to explain irregularities, such as different spellings of names or the death of a beneficiary.

Sometimes additional documents will need to be prepared to explain unusual circumstances and an estate lawyer can advise in this respect.

Once probate is granted, the executor may commence administration of the estate.

Dealing with assets held outside of Queensland may require the grant to be ‘resealed’ in the relevant jurisdiction. This is a procedural matter in which a copy of the original grant, together with a summons and supporting documentation is filed with the relevant Court in the jurisdiction where those assets are held.

Protecting executors

Executors may be liable for losses sustained by beneficiaries through negligence or delay in administering an estate but must also ensure that all claims are considered before distributing estate assets. To protect an executor from liability for potential claims by creditors, a notice is published providing a specified timeframe for a party to notify the estate of any claim prior to its distribution.

The possibility that a family provision claim may be made on the estate must also be considered. In such cases it may be prudent to wait for six months after the date of death before distributing assets.

An estate lawyer will explain the most appropriate means of protecting you as executor, from liability.

Administering the estate

The Will should be examined to ensure the distribution is in accordance with its provisions. Understanding the correct interpretation of a Will’s terms can be confusing and an estate lawyer will assist with explaining the proper construction of the Will.

The executor and beneficiaries should receive appropriate legal or financial advice when transferring / receiving assets to ensure that stamp duty, capital gains, land tax and other taxes are considered.

Executors should also be mindful of their duty to protect and preserve estate assets and to ensure that appropriate insurance, where relevant, is in place.

Estates that include business interests will require additional attention – the business may need to be wound up, or the interests sold or transferred to a beneficiary.

Prior to distributing assets, the executor will need to be certain that:

• the debts of the estate have been ascertained and paid in accordance with the statutory order for payment of debts;
• funds are retained in the estate for contingent expenses such as taxes and other fees;
• all beneficiaries have been identified and provision (if relevant) made for holding a minor beneficiary’s share in trust;
• the estate is not distributed until all creditors are identified and the requisite timeframe has expired for an eligible person to make a family provision claim;
• a proposed distribution statement has been prepared and approved, particularly where there are multiple beneficiaries;
• beneficiaries who are receiving insurable assets have arranged insurance cover in their own names before cancelling existing policies.

Conclusion

Applying for probate and administering an estate is an important function, and for many executors and beneficiaries, the process can seem tedious and daunting.

However, these processes are in place to ensure that executors and beneficiaries are protected and that the testamentary wishes of a deceased person are properly carried out.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.