Last updated 26 September 2018
The obtaining of a grant of probate involves certain formalities. The court needs to be satisfied that the will is the last will made by the deceased, and the person applying for a grant is the appropriate person to be recognised as personal representative of the estate. As part of the application, proof of the death of the deceased is required, and notice must be given of the intention of the executor to apply for probate.
The Uniform Civil Procedure Rules 1999 (Qld) (UCP Rules) require that notice of the intention to apply for a grant of probate be advertised and served on the Public Trustee, and that certain documents be prepared, sworn and filed in the Supreme Court Registry with the original will and death certificate (rr 598–599 UCP Rules). The Deputy Registrar of Probates examines these documents and, if they are satisfied that all formalities have been observed and that the documents are complete and in order, a grant of probate will be made (r 601 UCP Rules).
Letters of administration
The grant that the court makes to the administrator of an intestate estate is a grant of letters of administration on intestacy. The grant made by the court, where there is a will but no executor willing or able to apply for a grant, is a grant of letters of administration cum testamento annexo (with the will annexed).
Again, the basic two requirements for each application are:
- proof of the death of the deceased
- proof of the entitlement of the applicant to apply in priority to other persons interested in the estate of the deceased.
Notice of the intention of the applicant to apply for a grant must also be given.
The UCP Rules require the advertisement and service on the Public Trustee of the Form 103, Notice of the Intention to Apply for Grant, and the preparation and filing of certain documents in the registry. Subject to all formalities having been observed and the examination of documents proving satisfactory, a grant of letters of administration (on intestacy or cum testamento annexo as appropriate) will be made.
The registry of the Supreme Court follows a number of practices when examining documents in support of applications for grants of probate and letters of administration. The Supreme Court website provides guidance to persons seeking to make an application for a grant. The complexity of the law in this area and the expense that could be incurred if the advertising of the notice of intention is incorrect and needs to be re-advertised suggest that it is unwise for a person to apply for probate or letters of administration without professional assistance.
In Queensland, death duty is not payable on the estates of persons dying after 1 January 1977. Federal estate duty was abolished for persons dying after 30 June 1979.
The need to obtain probate or letters of administration of the estate of a deceased person in Queensland is determined to a degree by the nature of the assets in the estate and the manner in which ownership was held by the deceased. The value of the assets will not necessarily determine the need to obtain probate or letters of administration.
The Public Trustee is empowered in certain circumstances to obtain from the court an order to administer the estate, instead of obtaining a grant of probate or letters of administration of an estate (s 29 Public Trustee Act 1978 (Qld)) or, in the case of small estates (under $150 000), it may file an election to administer (s 30 Succession Act 1981 (Qld) (Succession Act)). These procedures are fairly informal, and the object of them is to provide a means of reducing the costs of administering estates.
Special powers of the Public Trustee
When a person dies while residing in Queensland or leaving property in Queensland, and a grant of administration has not been made to anyone else, the Public Trustee may apply for and be granted an order to administer the estate of that person when:
- the deceased dies intestate
- the deceased dies testate and the Public Trustee was appointed executor of the will
- the executor appointed does not within three months of the date of death, or cannot for a variety of reasons, take steps to administer the estate of the deceased.
Furthermore, when a person dies while residing in Queensland or dies leaving property in Queensland, and the gross value of the property which would pass to the deceased’s personal representative is estimated by the Public Trustee not to exceed $150 000, and there is no grant of administration in force in Queensland, the Public Trustee may in all cases in which it is entitled to obtain an order to administer, file instead an election to administer the estate of the deceased. The filing of an election to administer has the same effect as an order to administer.
When an order to administer is made by the court, the Public Trustee has the same powers over the property as it would have had if probate or letters of administration had been granted to it.
A deceased estate can be administered informally (i.e. without obtaining a grant of representation). However, this may depend on the requirements of the institutions with which the deceased held assets.
Banks and building societies
As mentioned earlier, every bank and building society has its own guidelines about its requirements for releasing funds without requiring a grant of probate. Enquiries need to be made to determine whether the institution will release funds without a grant and what other conditions may need to be satisfied to enable the release of funds accordingly.
On the death of one of the joint owners, the account can be noted without any formality and the account reverts to the surviving account owner or owners. Production of the death certificate is usually sufficient to have the change made to the account.
Some policies of assurance mature on death, under which the proceeds are payable to their personal representatives. These are commonly known as whole of life policies.
A life assurance society is empowered by an Act of parliament to pay the proceeds of such a policy or policies, so long as the amount of insurance or the aggregate amounts of insurance (in the case of more than one policy with the society) does not exceed a prescribed amount. The insurance must be paid to the widow or widower, to certain next of kin, to the legatee or to the personal representative of the deceased. It may be paid without production of probate or letters of administration. Bonus additions are disregarded when ascertaining the amount payable.
Jointly owned property
The interest of a deceased person in real estate or other property held by joint tenancy passes automatically to the surviving joint tenant or tenants without the need for a grant of probate or letters of administration.
Transfer of the registration of a motor vehicle following the death of the owner may be done without production of a grant of probate or letters of administration to the Department of Transport and Main Roads.
Furniture, jewellery and personal belongings
Ownership of furniture, jewellery and personal belongings can be handed over to those entitled following the death of the owner without the need for a grant of probate or letters of administration.