Simply put, Probate is the proving of a Will and in the process of “proving” the Will an “executor” or “executors” are appointed to act as representatives for the Estate of the deceased person.  In Queensland, probate is issued by the Supreme Court.

When do you apply for probate?

Probate is usually required in Estates with assets held by financial institutions and/or in shares.  Some Estates can be administered where the assets of the Estate do not require a Court Appointed Executor (such as furniture and vehicles), but banks, share registries and some land title offices require Probate before the Exector is permitted to deal with the Estate assets.

If the “Estate assets” are jointly held or of a superannuation death benefit type, the “Estate” may not require Probate, as jointly held assets and superannuation death benefits are disposed of without reference to a “Will” in usual course.  Jointly held assets pass to the survivor of the title holders, and superannuation death benefits can be distributed at the discretion of the Superannuation Trustee (which is not your Executor).

Who applies for Probate?

The nominated Executor(s) can apply to the Supreme Court for a “Grant of Probate”. The lodgment protocol relative to proofs and publication are specific.  An error at any stage can result in a costly rectification of the entire process.

How to apply for Probate?

The Courts have specific procedures that must be followed when applying for probate:

  1.  The first step is to advertise  the Application in the Queensland Law Reporter and the Public Notices section of the local daily newspaper in the area the deceased lived.  You must also forward a copy of the advertisement to the Office of the Public Trustee.
  2. The next step following advertisement, is to lodge the Application.  If a claim is made against the Estate following advertisement, the Estate will be subject to a “Caveat”, pending the resolution of the claim;  and
  3. Your Application must attach: Original Will, Application for Probate, Affidavit of Publication and Service including copies of the advertisements, Affidavit Supporting Probate Application, and the original Death Certificate.

If the Estate is based on a “DIY” Will Kit, or handwritten by a party, additional compliance is usually required, such as further affidavits.  Such “home made wills” are often subject to Requisitions, requiring further works for proving.

There are many aspects of the Application process which may be complicated due to extraneous factors, such as excluded beneficiaries, inappropriate or failed provisions and/or deceased beneficiaries.

The Nautilus Estate Team offers probate and administration services in Queensland and New South Wales.  If have an issue outside of this jurisdiction, we may be able to assist with providing a referral to practitioners in the other Australian States.  Further, our Practice Director, is a former United States Lawyer with experience in Estate Planning and Distribution in foreign jurisdictions.

We work on fixed fees for Probate, and hourly rates for Administration. We welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.

 

Submitted by:  Katrina E. Brown BA JD ATIA TEP SSA