What is Probate?

Estate administration is the process of distributing the assets of a deceased person’s estate to their beneficiaries or next of kin. This task is carried out by the Executor of the estate who is named in the deceased’s Will.

We can provide you with advice and services to ensure that you comply with your duties as Executor and that the provisions of the Will are followed as quickly and efficiently as possible.

If you have been appointed as an Executor of a Will then you have legal obligations to ensure that the:

In many estates it will be necessary for the Executor to apply to the Supreme Court of Queensland for a Grant of Probate to enable them to deal with the assets of the estate.

A grant of Probate is often required because some organisations holding assets of the estate (eg. banks and financial institutions) will not release them without first sighting a grant of Probate.

Probate is the legal process of validating a will in court, which allows the executor to manage and distribute a deceased person’s estate.

So that means, probate is the court’s official recognition that:

1. the will is legally valid; and
2. you are authorised to deal with the estate.

A grant of Probate may not be necessary if:

When someone dies without a Will the law will determine who receives the estate. In these circumstances Letters of Administration need to be obtained from the Supreme Court so that the assets and liabilities of the estate can be dealt with. Letters of Administration will authorise an appropriate person to administer the estate and distribute the assets.

A Grant of Letters of Administration is a more complex application and it is strongly recommended that you seek proper legal advice before undertaking such an application.

There are a number of reasons why a Will may be challenged including:

1. the Will is not valid; or
2. an appropriate person has been left out of the Will or been unfairly provided for.

One of the most common ways in which Will and deceased estates are challenged is by way of a Family Provision Application. A Family Provision Application involves a person with an appropriate relationship to the deceased making an application to the court seeking a share of the estate, or a larger share of the estate, on the basis that the deceased has failed to make “adequate provision” for their “proper maintenance and support”.

The only individuals who are entitled to bring a Family Provision Application are:

1. spouses (which includes de facto spouses);
2. children (which includes step-children); or
3. dependents.

The term “dependent” is defined in the legislation as a person who is “wholly or substantially maintained or supported by the deceased person” and who is also a parent of the ceased, parent of a child of the deceased, or a child under the age of 18 years.

Just because a person is entitled to bring a Family Provision application, it does not necessarily mean that they will be successful in challenging the Will.

The court considers these applications in a two stage process:

1. whether or not adequate provision has been made for the applicant’s proper maintenance and support. (The applicant must satisfy the court that inadequate provision has been made before the court can consider making any provision in favor of the applicant); and
2. if adequate provision has not been made, then the court will consider whether an order for provision will be made, and if so, in what amount. The size of the estate, the provisions under the will, the applicant’s financial position and the relationship between the applicant and the deceased are all matters taken into account by the court in exercising its discretion and making its decision.

If a person intends to proceed with a family provision application, then they must give written notice of their intention to do so to the legal personal representatives within 6 months of the date of the deceased’s death. The applicant is then required to file proceedings to commence the application and serve the proceedings on the executor within 9 months from the date of the deceased’s death.