Last updated 26 September 2018
Grant of probate
Probate means official recognition by a court that the executors have the right to administer the deceased’s estate according to the terms of the will, and that the executors have title to the assets of the deceased, which passed to them as executors. For a grant of probate to be made, there must be a will of the deceased in existence. When a person dies leaving a will, and there is no dispute that the will is the last will of the deceased, probate will be granted when certain documents are filed in the registry of the Supreme Court. If some dispute arises about the will, a court may be asked to decide whether or not to grant probate of the will.
Obtaining a grant of probate can be complex. It is advisable for the executor to obtain the services of a lawyer to help them with the process. Normally, the costs of obtaining a grant of probate are paid from the assets of the deceased estate.
Letters of administration
If a deceased died intestate, if a will does not appoint an executor, or if no executor is willing or able to act, the court may, at the request of an applicant, appoint an administrator. The order appointing such a person is known as letters of administration. The administrator oversees the distribution of the estate.
Again, the process of obtaining a grant of letters of administration can be complex, and any person seeking to be appointed should obtain legal assistance.
Statutory order on intestacy
When a person dies intestate or partially intestate, the estate (or the undisposed portion of the estate) is distributed between the deceased’s spouse or de facto spouse and children and then among the deceased’s next of kin in the order prescribed by the intestacy provisions under pt 3 of the Succession Act 1981 (Qld) (Succession Act). Next of kin receive property from an estate in accordance with the degree of their relationship to the deceased.
The people regarded as next of kin in this context are parents, brothers, sisters, grandparents, uncles, aunts, nephews, nieces and first cousins (ss 35(1), 35(1A) Succession Act). To receive the benefit, however, a person must survive the intestate for a period of 30 days (s 35(2) Succession Act).
The term ‘issue’ in this context means children and grandchildren, and includes children born to unmarried parents. It does not include stepchildren.
Grandchildren are entitled to share in an estate only if their parent, a child of the deceased, dies before the intestate. Schedule 2 of the Succession Act contains a Table that sets out in detail the distribution of the estate, or undisposed part of the estate, on intestacy or partial intestacy.
When determining the respective entitlements (or shares) of brothers and sisters, nephews and nieces, uncles and aunts and first cousins, the same rules apply as apply in the case of distribution to children and grandchildren of the deceased (see diagram below).
Where there is a distribution of the whole or part of the estate to children or grandchildren, the whole of the estate is divided equally among the issue if they are all of the same generation. However, if the intestate is survived, for example, by three children and two grandchildren, who are the children of a child who has died, each of the children will receive a quarter of the part of the estate set aside for issue, while the grandchildren will each take one eighth of that part of the estate (being an equal share (one half) of the one quarter share their parent would have received if they survived).
This diagram is showing the distribution of the estate of a person who died intestate with three of four children surviving and two grandchildren of the deceased child. A quarter share goes to each surviving child while the final quarter share is distributed equally between the children of the deceased child.
If the deceased’s only surviving issue were all grandchildren, then the estate is divided into as many entitlements as the deceased had children who left issue. The issue of each child then takes equally their parent’s share by representation.
The diagram below is showing the distribution of an intestate person’s estate where all three children of the deceased are also deceased but one has two children, the other has three and the third has none. The estate is divided into two, and the two children of the first deceased child get a quarter share (half divided by two) while the three children of the second deceased child get a sixth share each (half divided by three).
No will, no next of kin
Where a person dies leaving no will and no next of kin, property of the deceased passes to the Crown (government) as bona vacantia (un-owned property).
When probate or letters of administration are required
A grant of probate or letters of administration amounts to an official recognition by the Supreme Court of the right of personal representatives to administer the estate of a deceased, and it confers (or affirms) title upon them to those assets of the deceased that pass to them as the deceased’s personal representatives. It is not always necessary to obtain probate or letters of administration to enable the estate of a deceased person to be administered. Each financial institution has its own policy as to what amount they will release to an estate without requiring a grant of probate. As each institution has different requirements, it is important to find out the requirements to release funds before deciding if it is necessary to obtain a grant of probate or letters of administration. However, in any case when it is necessary for the personal representatives to provide proof of their title to property of a deceased person, or of their right to commence litigation on behalf of the estate of a deceased person, it is necessary for them to obtain a grant of probate or letters of administration. A grant of probate or letters of administration can also be advisable for a personal representative to obtain as it confers a certain level of protection on a personal representative acting under it (particularly in the event a later will is subsequently discovered).
Transfer of real estate
When real estate (e.g. a house, land or a home unit) is given by a will, an application must be made to the registrar of titles to register the beneficiaries as owners. The registrar of titles may act on the application without requiring the production of a grant of probate (s 112 Land Title Act 1994 (Qld) (Land Title Act)).
Where a person dies intestate, real property can be transferred without a grant of letters of administration, provided the gross value of the assets of the deceased in Queensland are no greater than $300 000 (s 111 Land Title Act).
When two or more people own property as joint tenants, the property passes immediately to the survivor or survivors on the death of one of them. No grant of probate is necessary to enable the ownership to pass, and the registrar of titles requires a request to record death to be lodged so that the survivor can be recorded as the owner.
Transfer of money
When no complications arise during the distribution of an estate, banks, companies and life assurance societies are often prepared to transfer balances of accounts (up to certain limits) and shares, and to pay out life policies to personal representatives without a grant of probate or letters of administration.