If a loved one has recently passed away you’ve probably discovered a thesaurus of new legal jargon. In this article we unpack some of these technical terms and will help guide you through the probate process like “what is probate and when do I need it in QLD?“.
What is Probate and when do I need it QLD?
Probate is the process of proving a person’s Last Will is valid which is achieved by applying for and receiving a Grant of Probate from the Supreme Court of Queensland.
In Queensland, probate is required for two reasons:-
- To prove to asset-holders that the Executor is lawfully entitled to receive the deceased’s assets; and / or
- To protect the Executor from liability for distributing property without authority.
An executor may be personally liable for distributing estate assets (see the example below) so it is always a prudent step to get probate.
If contentious issues are likely to arise or if the estate is likely to be litigated (e.g. a family provision application) it’s a no-brainer: you absolutely need probate..
An executor who administers an estate without a grant is often referred to as an intermeddler. They risk not receiving certain protections under the law from personal liability.
Read more: The Complete Guide to Probate QLD
Which assets may require a Grant of Probate?
Probate will most likely be required if a person dies leaving an estate in Queensland which includes:-
- cash exceeding $25,000 (minimums vary from bank to bank);
- shares in publicly listed companies if a shareholding exceeds $10,000 in value (sometimes the share registry can be petitioned to waive the need to obtain probate for holdings up to $30,000 in value, but very rarely any higher)
Regardless of the size of the estate, you should consider meeting with a QLD Wills and Probate Lawyer in Brisbane to discuss your obligations and duties as Executor of an estate.
When should an Executor consider applying for probate?
Even if the estate is small enough that the asset-holders don’t require proof of the Grant, it may still be a prudent option for the Executor to obtain probate.
An Executor is personally liable for distributing property to beneficiaries without authority.
Section 44(3) of the Succession Act 1981 (Qld) offers protection to an Executor who makes a proper distribution of the estate no sooner than:-
- 6 months (provided he or she has not received notice of a Family Provision Application); or
- 9 months if notice of a proposed family application has been received, but no Application has been filed.
Probate is more than just a necessary step to get assets. It also serves as protection for an Executor. Before proceeding without a grant of probate, you should always take legal advice from an experienced Wills and Estates Lawyer. Call our office on 07 3073 2405 for a free quote.
Executor Case Study: Simon passed away leaving a Will naming his friend Matt as the Executor and leaving his estate to Simon’s sister Maddie. Simon doesn’t own a house, but has 5 bank accounts each with $20,000. As the value of each bank account is only $20,000, the banks agree to release funds to Matt without a Grant of Probate in exchange for an indemnity and a certified copy of the Will. Three months after Simon passed away Matt has collected all Simon’s assets, paid his debts and distributes $90,000 which makes up the remainder of the estate to Simon’s sister Maddie. Two months later, Simon’s brother Harry returns from a secluded Buddhist retreat in Thailand. He has a more recent Will which names him sole beneficiary of Simon’s estate. Harry applies for a Grant of Probate in solemn form to prove the Will in his possession is the last true Will. To make matters worse, another woman named Holly is now claiming she was Simon’s de facto spouse and gives Matt notice of a Family Provision Application. If the application by Holly or Harry is successful, Matt may be personally liable for the $90,000 he distributed to Maddie (subject to a right of recourse) who was last seen living large in Miami.
