Key things We Offer
- Dealing with a deceased estate is often one of the most difficult tasks that you can do. Our probate lawyers in Childers understand this and ensure that we do everything during this time to make the process as easy as possible. Our staff are friendly, approachable, and understanding.
- Making an application for probate to the Supreme Court can be overwhelming. We are experienced in arranging for the required advertising and preparing the relevant documentation for filing.
- We will carefully consider all aspects involved in the administration of an estate, no matter the size.
Probate & Deceased Estates: Service Details
What is Probate?
Probate is recognition of Will’s validity and permission from the Supreme Court for the Executors named in the Will of the deceased to carry out their duties in relation to the Estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling a property and obtaining bank funds.
Are you a Will Executor?
Have you been chosen by a family member or friend to be the Executor of their Will? This means that you have been given the responsibility to manage their estate according to the terms they have outlined in their Will and to protect their assets under the various laws and rules that govern estate administration.
Executor Duties
An executor’s duties may include responsibilities such as:
- Organising the funeral
- Locating the most recent Will
- Obtaining a copy of the Death Certificate
- Making sure any property and assets are safe and secure
- Applying for Probate
- Paying insurance policies, debts and taxes
- Collecting monies belonging to the deceased from financial institutions and insurance companies
- Collecting debts owed to the deceased
- Lodging tax returns for the deceased and for the estate
- Selling properties and assets
- Reporting to beneficiaries
- Distributing the proceeds of the estate to beneficiaries
- Setting up trusts
Being an Executor can be overwhelming, particularly when you are grieving, but Dorrian Law can guide you through.
Do I need to apply for Probate?
In some circumstances it is necessary to make an application for a Grant of Probate. For example an application for a Grant of Probate may be required when there is a dispute with respect to the provisions of the Will or if an institution such as a bank or insurance company requires that probate be obtained prior to releasing funds to the Estate.
In some circumstances a Grant of Probate is not required (e.g. if an asset such as a home is held in joint names it will be automatically transferred to the surviving joint owner). It is important to always check with the organisation that you are seeking to obtain money from as to whether or not they require a Grant of Probate.
It should however be noted that obtaining a Grant of Probate can give a personal representative protection under s54(4) of the Succession Act, which states:
“A personal representative who in good faith and without negligence has sought and obtained a grant is not liable for any legacy paid or asset distributed in good faith and without negligence in reliance on the grant notwithstanding any subsequent revocation thereof.”
Each situation varies so we would recommend obtaining advice from one of our team.
Who applies for Probate?
The executor of the Will is the person entitled to apply to the Supreme Court for a Grant of Probate.
The Court will only issue the Grant of Probate when it is satisfied that the Will presented to the Court is the last Will of the person that he passed away.
The executor may also be referred to as the personal representative.
How to apply for a Grant of Probate
To apply for a Grant of Probate there are four basic steps:
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- You must advertise your intention to apply for a Grant of Probate in both the Queensland Law Reporter and if the deceased’s last known address was at a place in Queensland more than 150km from Brisbane, in the Public Notices section of a local newspaper circulating and sold at least once each week in the area the deceased last lived. If the deceased’s last known address was within 150km of Brisbane, in a newspaper circulating throughout the State.
- You must provide a copy of the advertisement to the Public Trustee.
- You must wait for a period of 14 days after the advertisements have been placed to give other parties time to object to the Grant of Probate. Anyone wishing to object can file a caveat in the Court which will stop a Grant of Probate being given until that claim has been resolved.
- After the period of 14 days, the appropriate documentation must be filed in the Supreme Court of Queensland, along with the Court filing fee. The Court will carefully consider each application. The following documents are also required to be lodged with the application:
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- the original Will
- the original Death Certificate
- a copy of the advertisement
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The original Will and Death Certificate will not be returned by the Court. It is therefore very important to obtain a certified copy of the Death Certificate or obtain a duplicate original from the Registry of Births, Deaths & Marriages.
A copy of the Will is contained within the Grant of Probate.
After an application for a Grant of Probate is filed the Court will consider the application and if satisfied will make an order for the Grant of Probate.
This process can take between 6 – 8 weeks to be completed.
Do I need a Solicitor?
Estates vary in complexity and Executor’s duties can be complicated, so it may be a good idea to get advice from a solicitor. The cost of legal advice is usually covered by the estate, not the Executors.
What if there is no Will?
This situation is referred to as intestacy and the law determines how assets will be shared out after debts have been paid. If you are the next of kin you can apply for Letters of Administration, which will give you the authority to finalise the estate.
Contact us to find out more or to arrange an appointment.