Losing a loved one is a very difficult time. The sadness and stress of your loss can often leave family members feeling overwhelmed when trying to deal with their loved one’s Estate.
Asset holders such as banks, share registries and nursing homes each have their own requirements which must be satisfied before they will release the assets of a deceased person, with many asset holders requiring a certified copy of Letters of Administration or a Grant of Probate. So, what does that all mean?
Grant of Probate
Probate is a grant issued by the Supreme Court of Queensland and proves the Will presented to the Court is the last Will of the deceased and that the Executor named in the Will has legal authority to deal with the deceased person’s Estate in accordance with the terms of the Will. A Grant of Probate is required by many asset holders as it gives them certainty that they are releasing the assets of a deceased person to the person with the legal authority to deal with the estate thereby reducing the asset holder’s liability.
In order to obtain a Grant of Probate, the Executor named in a deceased person’s Will must advertise their intention to make an application for a Grant of Probate in the Queensland Law Reporter. This gives creditors and anyone interested in the Estate the opportunity to notify the Executor of their interest in the Estate.
Notice must also be given to the Public Trustee. Once notice has been given to the Public Trustee and 14 days has passed since the Executor advertised their intention to apply for a Grant, the Executor’s application and accompanying affidavit material can be submitted to the Court. The deceased’s original Will and Death Certificate are submitted and retained by the Court.
The Probate Registrar will carefully scrutinise the Will before granting Probate and for the best chance of success, a legal practitioner who has experience in Succession Law should be consulted. In certain circumstances additional documents may need to be submitted to the Court and submitting the correct documentation in the first instance will be the most efficient and cost-effective option for the Estate.
When is a Grant needed?
Each asset holder has their own requirements that must be satisfied before the deceased person’s assets will be released. Generally, a Grant of Probate will be required where the value of the asset is higher than around $25,000 to $30,000, however some asset holders will require a Grant as a matter of course irrespective of the value of the asset.
If an asset holder does not require a Grant, then they will generally only release assets to the Estate where an indemnity has been signed by the Executor of an Estate. An indemnity effectively shifts liability from the asset holder to the Executor and the Executor is required to indemnify the asset holder against any later claims made against the Estate. This means that if a claim is made against the Estate, a later Will is found or the last Will is found to be invalid, then the Executor could become personally liable to repay the money released by the asset holder pursuant to the terms of the indemnity.
We strongly recommend that you consult a legal practitioner, specialising in Succession Law before signing any indemnity required by the asset holders of an Estate.
If you require assistance navigating the complexities of Estate Administration, then please contact our team today. Our caring team aim to make the process as stress-free as possible.
The information in this document represents general information and should not be relied on for your specific circumstances. If you require legal advice and assistance on the matters contained or associated in this document you should contact MMLaw. Please contact Christine Matsinger or Tamsyn Harris.