Where you have been appointed as an executor in a deceased’s persons Will, you may be required to obtain a Grant of Probate from the Supreme Court of Queensland to have the right to call in and administer the person’s estate. A Grant of Probate is an Order of the Supreme Court of Queensland granting an execution and/or trustee to deal with the estate of the deceased.
Entitlement to Apply for Grant of Probate in Queensland
The Succession Act 1981 (Qld) provides who is entitled to administer a deceased person’s estate. Where a person has been appointed as an executor in a Will of a deceased person, they are entitled to apply for a Grant of Probate in priority to anyone else.
Am I Required to Obtain a Grant of Probate?
The requirement to obtain a Grant of Probate depends upon the nature and extent of a deceased person's assets. Where there are minimal estate assets, or the assets are held jointly, a Grant of Probate may not be necessary. For example, where a husband and wife have jointly held real property, then the real property may fall outside estate law and be governed by the right of survivorship. Consequently, where there are shares, an aged care facility bond, or large sums of money held with financial institutions, then often a Grant of Probate will be required.
Steps to Apply for a Grant of Probate
There are many requirements to apply for a Grant of Probate and often it is complex and is governed by Part 2-3 of the Uniform Civil Procedure Rules 1999 (Qld).
As a rough guide, the process can fall into five stages.
Stage One – Advertising the Notice of Intention to Apply for Grant
When applying for Letters of Administration, it is a requirement that a legal notice is advertised outlining the administrator’s intention to apply for Letters of Administration.[1]
Generally, it needs to include:
The name and alias of the deceased
The deceased’s last known address
If a Will was left, the date of the Will
The name and address of the solicitor for the Applicant
The full name(s) of each Applicant for the grant
Generally, this is about advertising a Notice in the Incorporated Council of Law Reporting. There is a requirement as to the form and content of a Notice of Intention to Apply for Grant under the Uniform Civil Procedure Rules 1999 (Qld).
Stage Two – Notification to the Public Trustee of Queensland
A person other than the Public Trustee proposing to apply for a grant must also give notice in the prescribed form 14 days prior to the intention to apply for the grant and must give the Public Trustee notice 7 days prior to applying.[2]
Stage Three – Time Requirements
Once the Notice of Intention to Apply for Grant is published in the Incorporated Council of Law Reporting, a person must wait 14 clear days to enable objections to the foreshadowed Application for a Grant of Probate. Filing on the 15th day is permissible.
Stage Four – The Application
The court requires an Applicant to prepare and submit the following documents:
Application in the approved form
Affidavit in support of Application
The original Will
A copy of the original Will
The original Death Certificate
Affidavit of Publication and Service
A copy of the Notice of Intention to Apply for Grant.
In some cases, other documents may also be required depending upon the complexity of the affairs. For example, if someone is renouncing the right to be executor, a Renunciation must be filed. Alternatively, if there is an issue with the Will then an Affidavit of Plight, Condition and Finding may also be required.
Stage Five – Filing The Application
Once the requisite documents have been properly completed, the documents can be filed by attending the Supreme Court of Queensland, or alternatively posting the documents. If postage is used, a pre-paid A4 express post envelope should always be included for the return of the documents.
It is also crucial to ensure you have paid the relevant filing fees associated with the Application or have otherwise included a cheque payable if filing is completed by post.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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[1] Uniform Procedure Rules 1991 (Qld) r 599.
[2] Uniform Procedure Rules 1991 (Qld) r 598.