What is a grant of probate and why is it needed?
A grant of probate is a very important part of dealing with a deceased person’s estate, but if you have not had lost a spouse, parent, or other close loved one you may not have had to deal with probate or the act of applying for a grant of probate before.
If you have been told that you need to apply for a grant of probate or believe you will need to do so in the future, here is what you need to know about its use and how to go about applying for a grant.
What is a grant of probate?
A grant of probate is a document supplied by the Supreme Court of Queensland in recognition of a Will being legally valid and which gives authority to someone to deal with the estate of the person to whom the Will belonged. Generally, probate will be needed before the Executor of the estate is able to administer the estate.
Is a grant of probate always necessary?
The key reason why a grant of probate is necessary is also for personal protection. The Executor relying on probate does so to ensure they are not held personally liable in the instance another Will is uncovered that may mean the Executor should not have dealt with the assets in the way they have.
Certain assets cannot be dealt with if probate has not been granted, including high-value assets such as large share portfolios or bank balances, superannuation, and real estate. For their own protection, entities are within their rights to require probate to effect the transfer of these valuable assets, so they feel assured that they are transferring the property to the correct person.
If the deceased person has joint assets with another person, such as a house and bank accounts, then a grant of probate would not be essential as the ownership of these assets would have their ownership transferred solely to the surviving party. In this instance, a death certificate should be sufficient evidence to satisfy banks or other entities seeking proof of ownership.
Similarly, if the deceased person did not leave a large estate then probate may not be required. Each bank and share registry has its own threshold, but most will deem assets of up to $50,000 as ‘low-value assets’ that can be dealt with without probate, however, this is at the financial institution’s discretion.
What happens if there is no Will?
If a person dies intestate (without a Will) the Supreme Court can grant what is referred to as ‘letters of administration’ to an appropriate person to enable them to deal with the estate of the deceased person.
If the deceased does have a Will but the Executors named in the Will cannot act in that capacity either due to death or other incapacitation or they are simply unwilling to act as the Executor, then an application by an eligible person for a grant of letters of administration with the will can be made by the Supreme Court to allow someone else to act in the capacity of Administrator of the estate.
How do you apply for probate?
With complicated legal processes such as applying for a grant of probate, it is always prudent to seek the assistance of a solicitor who specialises in Wills and Estates.
You should also seek the help of a professional if you are applying for letters of administration.
It is possible to apply for a grant of probate without the assistance of a legal practitioner?
The process to apply for a grant of probate is complex and stringent. So, while it is technically possible for a person to apply for a grant of probate without the help of a lawyer it is not advisable. Missing a step or completing it incorrectly may mean your application is rejected completely, so it is best to engage a professional to manage the process for you.
If you need to apply for a grant of probate, speak to our Wills and Estates lawyers who can assist.