Do I need to apply for probate?

If you are the executor of someone’s Will, generally speaking, you will need to apply for probate.

Probate is the court’s recognition that a Will is legally valid, and you may need probate before you can take control of the deceased’s estate.

You don’t always need to apply for probate. You may not need probate if:

  • The value of the assets is relatively small.
  • The real estate is to be transferred to a beneficiary named in the Will.
  • You have to sell real estate.

You don’t need a grant of probate if an asset – such as the family home – is in joint names because it already belongs to the surviving joint owner. 

Queensland law generally requires that an estate not be distributed to beneficiaries within six months of the date of death.  During that time, anyone with claims against the estate can give notice they are contesting the terms of the Will. 

As part of applying for probate, you may also require copies of death certificates for any beneficiaries named in the Will who have died before the deceased. 

The process of obtaining probate requires the executor to make an application with the Queensland Supreme Court, and generally involves publishing an online notice and lodging a set of documents with the Court. 

The Court will review the documents and if all the information has been correctly prepared, the Court will make a Grant of Probate.

If you are the executor of someone’s Will, there are several other duties you are required to perform as well as applying for probate. 

This could include locating the Will, obtaining a death certificate, contacting any beneficiaries of the Will, and creating an inventory of the estate including cash, real estate, superannuation policies, and personal effects. 

There’s no “one size fits all” approach to probate, as it depends on so many different variables. It’s important you get the right advice about whether probate is even needed.

Our estate planning experts here at Bickell & Mackenzie will be able to help you with every aspect of Wills, probate, and other succession matters. 

We know this can be a difficult time for families, and we’re here to assist. Contact our office today to make an appointment.

 

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