After the passing of a family member, there is often a long administrative process that accompanies the grief. As the executor named in a family member’s will, you would need to take leave from your grieving process to attend to legal duties. Among the first duties you are required to take up is to take steps to validate the deceased person’s last wishes.

One of the first duties you are required to undertake as executor is to apply to the Queensland Supreme Court for Probate. The process of Apply for Probate QLD can appear daunting. However, if you understand the reasons for the process, documents you are required to present, and the process involved, then you would realize that it is less daunting and more ordered.

What is Probate?

A Grant of Probate is a legal document issued by the Queensland Supreme Court. This legal document fulfills two main functions. The first is to authenticate a last will and testament of a deceased person. The second is to grant legal power to the executor named in the last will and testament to collect, manage and distribute the deceased’s property. Banks normally open a person’s account and require a Grant of Probate before they release the funds in the account to the executor named in the last will and testament.

You may question why this process cannot be done later if the family gets along. Various institutions like financial institutions, share registries, super funds, and the QLD Titles Office hold major assets. If they hand over a large bank balance or change title to the family home, they could be liable. Obtaining a Grant of Probate gives the above organizations a defense to their actions in transferring the deceased person’s assets and protecting the estate from assets being distributed to the wrong persons.

When is Court Certification Needed?

Real Property

Generally, if the deceased person held an interest in real property in their own name or as a tenant in common, the Titles Office would require the grant of probate to transfer or sell the real property.

However, if the real property was held as joint tenants, it would automatically vest in the surviving joint tenant or tenants under survivorship on the person’s death and therefore would not require a grant of probate.

Bank Accounts and Investment Holdings

It is common for major Australian banks to have internal policy thresholds in the range of $20,000 to $50,000. If the deceased person had funds on account with the bank in excess of the threshold, the bank would freeze the account until a grant of probate was produced.

Generally, if the shares or other investment holdings are valued at or above a certain amount, they cannot be distributed or sold without the courts ordering it.

Competing or Contested Wills

Generally, a court application is required if the deceased person had major assets in their own right or if the family isn’t all in agreement regarding the administration of the estate.

If there are multiple wills, wills that are informally handwritten, original wills that are missing, and/or various family members wanting to contest the will, then an application is needed to resolve the case once and for all.

The Executor’s Path: Critical Steps Between Application and Distribution

There are several steps required to be taken by an executor that are regulated by the courts and court rules. These steps include:

• Step 1: Locating the Will and Identifying Assets: Prior to beginning any court proceedings, it is the executor’s legal obligation to locate the last will and testament of the deceased in personal effects or safety deposit boxes, as well as identifying all assets and debts, including funeral costs.
• Step 2: Public Notices and Advertising: Pursuant to the rules of the Supreme Court of Queensland, executors are obligated to place a public notice in the Queensland Law Reporter, giving potential claimants 14 days to come forward, and serve notice on the Public Trustee of Queensland.
• Preparing Affidavits and Court Briefs: After the statutory advertising period, lawyers prepare affidavits sworn by the executor confirming possession of the death certificate and original Will, which are filed along with court fees in Brisbane, Rockhampton, Townsville, or Cairns.
• Distribution and Closing of the Estate: Once Probate is granted, the executor receives Court authorization to proceed with estate administration, instructing banks to close accounts, paying debts and taxes, and making final distributions to beneficiaries.

Administrative Obstacles that Hinder the Court Process

There are a number of unexpected and unanticipated issues that occur when executors attempt to carry out the administration of an estate without legal representation, including:

• Delays by the Court: If the name of the person named in the Will differs from their driver’s license or birth certificate, the Court may issue a requisition delaying the grant of Probate for several weeks.
• Mishandling of Wills: If the will is either clipped or stapled, the executor may be required to retain a lawyer to file an affidavit explaining why the document has been unfastened or mishandled.
• Premature Distribution: If estate funds are distributed prior to the expiration of statutory time periods for creditor claims, the executor may be held personally liable for unpaid estate debts.
• Complex Documentation Errors: Incomplete forms or missing supporting documentation can lead to formal requisitions that severely stall the administration process.

Specialist firms like ‘Australian Probate Centre‘ understand the difficulties involved in administering a deceased estate and offer services including step-by-step procedures, legal services, and case managers who liaise with the courts and banks.

How to Protect Your Interests as an Executor

To manage the estate and act on behalf of the court in an open and straightforward manner, consider the following essential practices:

• Maintain an Eye on the Money: Record and retain receipts and supporting documentation for every single dollar spent or received on behalf of the estate.
• Be Aware of Beneficiaries’ Concerns: Provide beneficiaries with regular updates on the status of the administration of the estate to maintain transparency.
• Look After Your Interests: Contact a lawyer if you have to act on behalf of the court and you have concerns about potential disputes or other issues.
• Professional Legal Representation: Obtain legal counsel to guide you through court proceedings, ensure compliance with statutory rules, and safeguard against personal liability.

Conclusion

Ultimately, being appointed the executor of a will is an honor, but it comes with responsibilities. You can gain legal authority to manage the estate through the court. This gives you the power to close off the estate. You can take the steps necessary to carry out your obligations to distribute the estate, while protecting the interests of the beneficiaries.