What is Probate?

How does probate work in Queensland?

A common question I get asked is “what exactly is Probate?”

My name is Chris Thompson, solicitor with Law Essentials. This video provides some free general information that you would typically get told by a solicitor at the first appointment and no doubt you would pay for that.  This is general information based on the Queensland requirements.  I recommend if you want specific advice on your particular case then you should see your solicitor.

Probate is simply the Supreme Court of Queensland confirming that a Will is valid (so that means it is signed correctly, it’s complete and that it is in fact the last will of the deceased.

There is no legal requirement to obtain Probate in Queensland, however a bank or share registry might require it.

Take an example where you there is $100k in the bank account of the deceased.

You go to the bank with a will dated 2020 and the death certificate and ask for the $100k as the executor.

The bank does not want to take the risk that there is a will dated 2021 appointing a different executor for example, so they ask for Probate so the Supreme Court confirms that the Will you have is the last Will and therefore the bank hands over the $100k.

Most banks have a requirement where if there is $50k or more, then it is mandatory Probate first.  If under that amount they will still require a number of forms to be completed to again get them off the hook.

Benefits of Probate for a Queensland Will

Probate is simply an application to the Supreme Court which includes a requirement that you advertised correctly in the Queensland Law Reporter and gave notice to the Public Trustee that you believe the will you have is the last will of the deceased.

The advertising gives the opportunity to other parties to either come forward with a later will or maybe to come forward saying the deceased owed them money or they wish to contest the Will.

Another advantage of getting Probate for the executor is that once obtained, the executor is free to distribute the assets of the estate, provided no other person has come forward with a later will given notice to challenge the will.

There is no requirement to use a solicitor to do the application.  You must make sure however that the legal documents that you are filing in the Court are correct, so it might assist getting a solicitor involved.  Most do a fixed fee so make sure you ask what it costs before you agree.

The whole process can take 6-8 weeks (usually less). 

So I hope that helps you understand what Probate is and why it might be needed.  It’s just a process and nothing too difficult about it.

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