Understanding probate

If you are named as executor in someone’s will, you have the responsibility of carrying out the terms of their will when they die.

This means that you have to deal with their property (commonly known as their estate). To act on the will, you may find that you have to apply for probate, which is the official recognition that a will is legally valid.
what’s the process?

As executor, you apply to the Supreme Court for a “grant of probate”. This is a document certifying that the Supreme Court recognises your authority to deal with the estate. The court will only issue the grant when it is satisfied that the will you wish to act on is the last will of the person who has died.

Why would I need IT?
The main reason is that some people or organisations holding assets of the estate will not release them without sighting a grant of probate.

There may also be other situations where it is necessary or desirable to obtain a grant. For example the estate may be involved in litigation or there may be some uncertainty as to whether the will is in fact the last will of the deceased.

Do I have to apply?
Not necessarily. It may depend upon a number of factors including the nature and value of the assets of the estate. You don’t need a grant of probate if the asset (e.g. the family home) is in joint names, because it already belongs to the surviving joint owner. In general it is worth checking first to be sure that a grant of probate is really necessary.

You may not need one if:
• the assets are not large (a small bank account); or

• real estate is simply to be transferred to a beneficiary named in the will (the Land Titles Office has a special procedure for this, and you usually don’t need a grant of probate); or

• you have to sell real estate (the Land Titles Office has a special procedure for this too, and you usually don’t need a grant of probate).

What is involved?
There are strict requirements which must be adhered to in order to have the grant of probate issued. If the process is not followed exactly, the application needs to be resubmitted, so the costs can escalate.

The steps are:  
1. Advertise
• The notice of intention to apply for a grant of probate is advertised in the Public Notices section of the daily paper in the area where the deceased last resided, and in the Queensland Law Reporter.

• A copy of the advertisement notice is also served on the Public Trustee.

2. Prepare documents
An application and affidavit must be signed by the executor. The affidavit exhibits the original will (never pin or attach anything to a will) and the Certificate of Death. These documents remain in the court once the application has been filed. An affidavit confirming the notice has been properly advertised is also prepared. If the will is damaged or tampered with in any way an additional form must be submitted to explain and attest to the plight and condition of the will.

3. File the application
• The application cannot be filed in the court until two weeks after the advertisement appears. This allows anyone claiming to have an interest in the estate to file a caveat. It stops a grant of probate being made until the claim is sorted.

• A fee is payable to the court at the time the application is filed. The Grant usually issues about three to four weeks  after the court receives the documents.

 Dr John de Groot is Special Counsel at de Groots Wills and Estate Lawyers.  Visit degroots.com.au