Quite simply, a Grant of Probate is the Supreme Court of Queensland’s official recognition of a Will as legally binding.
A Grant of Probate differs from other grants made by the Supreme Court of Queensland as the deceased person had a valid Will at the time of their death and the person/s named as executor in said Will is applying for the grant.
One of the first decisions an executor has to make is whether they should apply for a Grant of Probate. A Grant of Probate is not a mandatory requirement in Queensland and where a person’s estate is small and uncomplicated an executor may decide to dispense with such formality especially in circumstances where the cost of obtaining the Grant of Probate would be burdensome to the beneficiaries under the deceased’s Will. Before making the decision to apply for a Grant of Probate or not, an executor should make enquiries with financial institutions, super funds and insurance firms where the Deceased has assets to determine whether these institutions have formal requirements that a Grant of Probate be made before any funds or assets they hold are released to the executor and/or beneficiaries directly. We always recommend seeking legal advice from an experienced Lawyer when doing this.
The process of obtaining a Grant of Probate is proving to the Court’s satisfaction that the Will is the last Will made by the deceased and the person applying for the Grant of Probate is the right person to be applying for the Grant.
The formal requirements for obtaining a Grant of Probate are set out in the Uniform Civil Procedure Rules 199 (Qld). The process contains 5 basic steps, which include advertising of your intention to apply and preparing and apply for the application with the Supreme Court Registry. The process can be complicated, especially in circumstances where there is a possibility that a Will will be contested, and you may consider seeking legal advice from a Cairns Lawyer to assist you through this process. The 5 basic steps are:
- The executor must first advertise in the Queensland Law reporter of their intention to apply for a Grant of Probate for the Deceased in respect of their Will. The advertisement must be in the approved form and amongst other things sets out details of the Deceased, the details of the Will being proved and how a person may object to the Grant of Probate being made.
- The executor must serve on the Public Trustee the notice.
- The executor must allow people time to object to the application. The objection period is for a minimum of 14 clear days after the notice was advertised in the Queensland Law Reporter and 7 days after the notice was served on the Public Trustee. A person may object to the application by filing a caveat with the Supreme Court Registry. A person may file a caveat if it is alleged that the Will is invalid because the Deceased did not have capacity at the time of making the Will or there is another Will the Deceased made at a later time revoking the Will. The caveat remains in force for 6 months and after it has been filed the person who filed the caveat must within 8 days file a notice to support their caveat with the Supreme Court Registry.
- The executor must prepare the documents and collate the information required under the Uniform Civil Procedure Rules 199 (Qld). The Queensland courts website is a great resource that sets out the minimum documentation required to apply for a Grant of Probate.
- The executor may then file the application and supporting documents with the Supreme Court Registry. Upon filing the registrar will examine the documents to ensure that everything is in order. If there are no issues they will issue the Grant of Probate if there are any discrepancies or errors the registrar will issue a requisition, and depending on the problem allow you the opportunity to fix the issue.
The costs for applying for a Grant of Probate include advertising fees, court filing fees, the application fee for the original death certificate and legal fees if you have obtained a solicitor. These costs may be recovered as a testamentary expense from the Deceased’s estate.
If you need any assistance in applying for a Grant of Probate, please do not hesitate to contact our experienced Cairns estate Lawyers who will be able to guide you through this process at a competitive and fixed fee price so you know what you can expect to spend from the outset. Contact Preston Law in Cairns on ph 4052 0700.