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Deceased Estates: What is Probate?

By Ray White Whitsunday

Obtaining a Grant of Probate for a Will involves making an application to the Supreme Court of Queensland for an order that the Will is legally valid and the last known Will of that person.  It provides the executor with authority to perform their role and administer the estate.

As the executor of a deceased estate, you may need Probate before you can take control of the estate’s assets (also known as administering the estate).

In some circumstances a Grant of Probate is not required such as:

  1. the value of the assets is relatively small (e.g. a small bank account);
  2. the real estate is to be transferred to a beneficiary named in the Will;
  3. you have to sell real estate.

It is important to always check with the organisation that you are seeking to obtain money or assets from, as to whether or not they require a Probate, as an application for Probate is often made because an asset holder of the estate has requested that Probate be produced prior to estate assets being released to the executor.

Probate will not be required in every estate, although there are some benefits to executors in obtaining Probate.  An example of such a benefit is where Probate is obtained, an executor is protected against any later claim that the Will is not in fact the last Will of the deceased.

A Grant of Probate will not protect against a Family Provision Application where an excluded beneficiary wishes to seek further provision from the estate.

When assisting the executor of an estate to obtain Probate, we will prepare a compliant notice of intention to apply, advertise in the necessary publication, effect service on the Public Trustee, draw-up affidavit material and apply to the Supreme Court of Queensland on your behalf.  If you have been named as an executor of a Will and would like advice as to whether it is necessary for you to obtain Probate or would like assistance with obtaining Probate then please contact our office.

Source: Mcrossan & Amiet

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