The application for a grant of probate is often one of the most important stages in the administration of a deceased estate. The application for a grant of probate is a significant responsibility for the executor of the estate as the correct procedure must be followed in order to obtain a grant of probate and begin calling in and distributing the estate.
The following is a list of common issues which may arise when seeking a grant of probate:
Is it necessary to advertise your intention to apply for probate?
Yes. If an executor of a deceased estate intends to apply for a grant of probate, they must give various notices of their intention to apply for a grant of probate in a particular way. This includes notifying the Public Trustee of Queensland and publishing a copy of the notice in certain publications (for example, an executor will be required to publish the notice in a newspaper circulating throughout Queensland but in some circumstances the notice may be published in a local newspaper).
The procedure for obtaining a grant of probate is very specific and requires a period of two weeks from the date of publication of the relevant notices to pass before an application to the Supreme Court for a grant of probate may be made. This is to allow other potential applicants and/or claimants to contact the executors with respect to the estate.
What will the Supreme Court consider before admitting a will to probate?
In order to obtain a grant of probate, the executor must satisfy the Supreme Court that the will presented to the Court is a properly made will and is, in fact, the last will and testament of the deceased. It is important for executors to explore the possibility that later testamentary instruments may exist, even if they have been prepared informally.
If there is more than one testamentary instrument and these documents are inconsistent, both executors will need to apply to the Supreme Court to have the issue determined.
Is it mandatory to apply for probate?
It is not always necessary to apply for a grant of probate. For example, where assets are jointly held they will be subject to the right of survivorship (that is, the surviving joint owner will automatically take ownership of the asset irrespective of the deceased’s will).
Whether a grant of probate is required is a matter often determined by the various institutions in control of the deceased’s assets (for example financial institutions such as banks and building societies).
Real property (i.e. land) can often be dealt with or disposed of without the need for a grant of probate however the Titles Registry has a very specific set of requirements which must be met.
Whether or not you intend to seek a grant of probate, if you are acting as an executor of a deceased estate it is important to seek legal advice from a wills and estates lawyer.