Probate is a legal process often shrouded in mystery for many individuals. It’s a crucial step in the aftermath of a person’s passing, particularly in ensuring the orderly distribution of their assets and the fulfilment of their last wishes.
In Queensland, the process of probate follows specific procedures and requirements. Let’s delve into what probate entails, its costs, timeline, and various aspects surrounding it.
What Exactly is Probate?
Probate refers to the Supreme Court’s grant that confirms the validity of the deceased’s last will. It serves several pivotal purposes:
Validation of the Will: Probate verifies the authenticity and legality of the deceased's will.
Assessment of the Estate: It discloses the assets and liabilities of the estate.
Executor Verification: It confirms the identity of the appointed executor.
Executor Authority: It gives the authority to the executor to deal with the assets of the deceased.
Once Probate is obtained, the executor can move forward and manage the estate, settling debts, and distributing assets to beneficiaries as outlined in the will.
Costs Involved in Probate
Understanding the financial aspect of probate is essential for those navigating the process. In Queensland, three primary costs are associated with probate. These costs can vary depending on the complexity of the estate and other factors.
Professional fees: These are the costs passed onto the estate by a solicitor who has been engaged to assist you with the application.
Advertising costs: These are the costs passed on by the Incorporated Council of Law Reporting (ICLR), the approved publication provider under Rule 599(2) of the Uniform Civil Procedure Rules 1999 (Qld) and the Supreme Court Practice Direction 14 of 2017 for giving public notice of the intention to apply for Probate.
Filing fees: These are the fees that the Department of Justice and Attorney-General pass on to file the Application to obtain Probate.
Other costs: Whilst there are fees involved to obtain probate, there may be additional or other costs for administration and even distribution of an estate depending upon the size and nature of the estate.
Is Probate Mandatory in Queensland?
No, probate is not mandatory by law in Queensland. However, many organisations, such as banks, nursing homes, and government departments, often require it before releasing funds or transferring assets to beneficiaries. Consequently, while not obligatory, obtaining probate is necessary in practical terms, or you will not be able to call the estate in, which is a duty on the part of the executor.
Timeline for Obtaining Probate
The duration for procuring probate in Queensland typically takes around one to two months, subject to the workload of the Supreme Court and the complexity of the application. The timeline is impacted by the need to first obtain the death certificate, which can take between 2-3 weeks.
You then need to publish the notice of intention to apply for probate. Whilst there is a mandatory 14 day waiting period from the date of the notice, there may be a small (usually a week) delay with the ICLR before the notice itself will be formally published. Once the period has elapsed, you can then apply for probate. The Supreme Court will usually take around a month or so to return the grant itself.
Deadline for Probate Application
While there isn’t a strict deadline for applying for probate, executors have a fiduciary duty to administer the estate promptly and efficiently. Delays in probate application could lead to complications, including potential interest payments to beneficiaries after a year, according to the "executor’s year" rule.
Applying for Probate
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Where you have been appointed as an executor in a deceased’s persons Will, you may be required to obtain Probate from the Supreme Court of Queensland to have the right to call in and administer the person’s estate.
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For a comprehensive guide on applying for a probate, read our article by clicking here.
Where to Find the Deceased’s Will?
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Unlike some jurisdictions, Australia doesn’t have a centralised register of wills. Typically, wills are kept by the solicitor who drafted them or may be found among the deceased’s personal papers. If no will is found, the Supreme Court can still issue Letters of Administration to facilitate estate administration. For more information on the different types of grants, take a look at our detailed article by clicking here.
Requirements for a Valid Will in QLD
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For a will to be considered formally valid in Queensland, it must be written or typed, signed by the deceased, dated, and witnessed by at least two people. Failure to meet these requirements doesn’t necessarily invalidate the will but may require legal intervention to obtain probate.
For more information, click here.
Additional Probate Considerations
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Executors may be entitled to reimbursement for their efforts, known as "Executor’s Commission."
If probate was obtained in another Australian state, it may need to be resealed for recognition in Queensland.
Executors are expected to finalise estate distribution within a reasonable timeframe to avoid interest charges on bequests.
Consider getting legal assistance, or risk a probate requisition, which is a notification from the Supreme Court that one or more requirements of the application has not been fulfilled. In turn this can lead to considerable delay and further cost, as well as wasting the courts time.
Conclusion
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Probate in Queensland is a critical legal process that ensures the orderly distribution of a deceased person’s assets according to their wishes. While not obligatory, obtaining probate is often necessary to navigate the complexities of estate administration. Understanding the procedures, costs, and timelines involved can help executors navigate this process efficiently and effectively.
Need Advice?
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If you are seeking more information, feel free to reach out to RHC Solicitors on (07) 3209 7000 to schedule an appointment with one of our estate solicitors. There are no charges for a first consultation, which is ultimately aimed at helping you.
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.
Scott A. Green ©