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What is Probate of a Will and How do You Apply?

What is Probate of a Will and How do You Apply?

When a loved one dies there is not only grief to manage but a long list of administrative tasks to complete to resolve their affairs. One of those is probate, the legal process to validate a deceased person’s will and ensure that their assets are distributed according to their wishes. This step will generally be the responsibility of the executor of the deceased’s will.

In Queensland, probate follows specific procedures outlined by law and governed by the Succession Act 1981. The Supreme Court of Queensland oversees the probate process, ensuring that it adheres to legal requirements. Gaining probate of a will is advisable in most circumstances as it allows the estate to be administered under its rules, avoiding the possibility an executor will be held personally liable for mistakes or irregularities in distributing the estate.

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How to apply for probate in Queensland

There are a number of steps involved in probate of a will, beginning with determining if the process is necessary as not all estates require probate. In Queensland, probate is usually necessary when:

  • the deceased owned real estate solely or as tenants in common;
  • the deceased owned substantial assets solely in their name;
  • the deceased held assets in a trust or business name.

If the deceased’s assets are jointly owned or held in a trust with a survivorship clause, probate might not be required. Financial institutions, super funds and shareholders will generally require a will to be validated through the probate process before releasing any of the deceased’s funds to beneficiaries or to reconcile debts.

The key steps to applying for probate in Queensland are:

Advertise the intention to apply: A notice for an application for probate must be published in the Queensland Law Reporter, after which the applicant must wait 14 days to give persons a chance to object to the probate application. A person claiming to have an interest in the estate can file a caveat, or objection, which may prevent the court from granting probate until the claim is resolved. The Queensland Public Trustee should also be notified of an intention to apply for a grant of probate.

Gather required documents: Before applying for probate, gather the necessary documents to make the application, including:

  • the original will of the deceased;
  • death certificate;
  • details of the deceased’s assets and liabilities.
  • information about the beneficiaries named in the will;
  • executor’s identification and contact details.

Complete the probate application: The next step involves completing the probate application form, which is available from the Supreme Court of Queensland website. The application form requires detailed information about the deceased, their assets, beneficiaries, and the executor(s).

Lodge the application with the Supreme Court: There is a filing fee payable to the court upon lodging the application. Queensland Courts recommend filing the documents in the Supreme Court nearest to where the deceased person lived to reduce processing time.

After lodging the application, the court will review the documents. If everything is in order, the court will grant probate. This process may take several weeks to several months, depending on the complexity of the estate and the court’s workload.

Once probate is granted, the executor(s) can begin administering the estate. This involves:

  • notifying beneficiaries and creditors;
  • gathering and valuing assets;
  • paying outstanding debts and taxes;
  • distributing assets to beneficiaries as per the terms of the will.

Once all debts are paid, and assets are distributed, the executor(s) can finalise the estate. This includes preparing a statement of account detailing all transactions and distributing it to beneficiaries.

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Uncertain? Contact our wills and estate professionals for more information

Applying for probate in Queensland is an essential legal process to facilitate the orderly distribution of a deceased person’s assets according to their wishes. While the process may seem daunting, following the outlined steps can streamline the probate application process and help executors fulfil their duties efficiently.

Seeking legal advice or assistance from a solicitor experienced in probate matters can provide valuable guidance throughout the process, ensuring that the deceased’s estate is handled in compliance with Queensland law. Our expert team at ROC Legal have a proven track record in helping families through the probate application process during a time of grief, so contact us for more advice and guidance.

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