Have you recently lost a loved one who may or may not have left a Will? Are banks and other institutions not willing to speak to you even though you want to adhere to your loved ones wishes? This may be because these institutions require a Probate or similar Grant.
Do you always need a Grant of Probate?
You do not always need a Grant of Probate, however, obtaining a Grant of Probate or similar Grant is generally the rule and not the exception.
Normally, banks, financial institutions, super funds, share registries, nursing accommodation providers, and the Lands and Titles Department have policies requiring third parties to produce a certified copy of the Grant of Probate or similar Grant once their member or client has passed away. The main reason these institutions require a copy of the Grant of Probate or similar Grant is to indemnify themselves when releasing Estate assets and funds to third parties.
So, what exactly is a Probate or similar Grant?
You can determine which Probate or similar Grants you need from each circumstance. You could fall into any of the following categories to assist with your Estate administration.
The three (3) most common Grants are:
Grant of Probate – this is applied for by the Executor(s) named in a validly written Will.
Grant of Letters of Administration of the Will – this is applied for by an authorised person when the nominated Executor(s) are not acting in that role for any reason. An authorised person can be:
- the husband or wife;
- one or more children or other next of kin if there are no children;
- a Trustee & Guardian if there is no appropriate next of kin; and/or
- any other person the Court thinks is fit.
Grant of Letters of Administration on Intestacy – this is applied for by an authorised person when there is either no Will left by the deceased, or when the deceased did not leave a valid Will.
There are also other types of Grants issued for special circumstances, such as:
Grant of Probate of a Copy of a Will – this is applied for by the Executor(s) named in a validly written Will, however, only when the original Will is lost and only a photocopy or scan of the Will is locatable. To obtain this Grant is technically complex as it involves, among other things, producing evidence to overturn the Court’s assumption that the Will was intentionally destroyed.
Reseal a Grant of Probate – this is applied for when a Grant of Probate has already been obtained in another State, Territory, or country. Therefore, rather than creating a new application for Grant of Probate, you can apply for an exiting one to be resealed.
The above Grants are obtained from the Supreme Court of Queensland which allows organisations to identify you as a valid Executor or Administrator for the Estate of the deceased.
Steps to Obtain a Grant of Probate or similar Grant
There are five (5) main steps to obtaining a Grant of Probate which includes:
- Advertise your intention to apply for a grant of Probate in the Queensland Law Reporter;
- Notify the Public Trustee of your intention to apply for a Grant of Probate;
- Give people time to object – usually 14 clear days after your intention to apply is published in the Queensland Law Reporter;
- Prepare your application documents which include an application, affidavits, exhibit sheets, the original Will of the deceased, and the deceased’s death certificate; and
- File your application and supporting documents at the Supreme Court of Queensland.
Generally, the advertisement in the Queensland Law Reporter must be available for viewing for two (2) clear weeks from the date of advertisement prior to submitting the application for Probate to the Supreme Court of Queensland.
Once the application for Probate or Administration is filed in the Supreme Court of Queensland, it can take approximately 6-8 weeks depending on the Supreme Court’s workload at the time of submission.
Once you have a Grant of Probate or similar Grant
Once the Executor obtains their Grant of Probate or similar Grant, they can apply to the institutions that required the Grant of Probate to have the assets of the deceased released to them on behalf of Estate.
Therefore, by obtaining a Grant of Probate or similar Grant, the Executor or Administrator are granted access to be able to deal with the affairs of the deceased on behalf of the Estate. In addition, obtaining a Grant of Probate or similar Grant affords the Executor or Administrator a level of added protection from being held personally liable for any honest mistakes made as part of the Estate administration.
Further, it is important to note that the Estate should not be distributed for at least six (6) months from the date of death as this is the timeframe in Queensland for persons to provide notice that they intend to contest the Estate. Naturally, if the Estate is contested, the Estate should not be distributed until the contested matter is resolved.
If you have any questions or require additional information regarding a Grant of Probate or similar, please feel free to contact our friendly Wills & Estates Team at Affinity Lawyers on (07) 5563 8970.