If you live in Queensland, Australia, and are named as the executor in a Will, you might wonder what is probate application in QLD and if you need it. Probate is the legal process of proving that a Will is valid and ensuring that the deceased’s assets get distributed according to their wishes.
In Queensland, probate is not required in all cases, but there are some circumstances where it may be necessary.
Probate is a Supreme Court of Queensland’s ruling that ‘validates’ a deceased’s Will. It gets accomplished by naming the person who will be held accountable for carrying out Will’s contents. This person is the executor of the Will.
Probate gets issued to the executor (or executors) appointed in the deceased’s last Will or Testament. Queensland succession law allows the appointment of up to four executors simultaneously.
An executor (or executors) may be deceased or refuse to assume the post of executor. The other co-executors or an alternate executor named in the Will gets appointed in this case.
The provisions of the Will and the surrounding circumstances ultimately establish who the validly appointed executor is.
No, not always. Nothing in Queensland requires the executor to hire a lawyer to secure the grant of probate. However, it can be a technical and challenging process; therefore, it may be worth hiring a lawyer knowledgeable about the probate process to obtain it on your behalf.
Queensland succession law is unique in that it does not require that every estate get granted probate or letters of administration – that is, some estates can get administered without probate.
With a few targeted questions, the professionals can determine whether you are likely to require a grant of probate or if you may be able to avoid the time and expense of getting probate.
There are some processes to take before filing for probate in Queensland, such as
- Publicize your notification of intent to apply for a grant.
- Serve notice to the Public Trustee.
- Wait for the court rules’ time limit to expire.
- Required papers must be filed with the Queensland Supreme Court.
When you fulfill all requirements, your Probate application and supporting affidavit proof is filed with the Supreme Court. The Probate Registry then handles them.
There are four main circumstances where probate may be required in Queensland:
In Queensland, probate is required if the deceased owned land or property in their name. It includes both residential and commercial property.
If the deceased owned property with someone else, probate may still stand valid depending on how the ownership was structured. For example, if the property was owned as joint tenants, probate would not be needed because the surviving owner would automatically inherit the property. However, if the property were owned as tenants in common, probate would be necessary because each tenant owns a specific share of the property that must get transferred to the rightful heir.
Probate is required when the deceased had an SMSF and named a beneficiary other than their spouse or children under 18 years old. If the SMSF did not have a beneficiary named, then probate would also be required to transfer ownership of the fund to the rightful heirs.
Death payments get paid to beneficiaries chosen by the policyholder. However, if there is no named beneficiary or the beneficiaries cannot be located, then probate may be required to receive these funds.
Furthermore, even if there is a named beneficiary, they may still need to provide evidence of their identity and relationship to the deceased in order to collect these funds. It could require obtaining a grant of probate even if it would not otherwise be necessary.
In Queensland, creditors should lodge a claim against their estate for unpaid debts within 12 months of the person’s death. If there are insufficient funds in the estate to pay off all creditors, the beneficiaries have to contribute additional funds from their own pockets; unless they can prove they did not benefit from fraudulent activities conducted by the deceased during their lifetime.
Obtaining a grant of probate can help beneficiaries protect themselves from having to pay debts they did not incur themselves by providing evidence that they are not responsible for any debts owed by the estate.
In short, whether or not you need a probate application in QLD depends on several factors specific to your situation. If you are unsure whether your loved one’s estate requires probate, it is best to seek legal advice, especially if the land is involved.
An experienced lawyer or consultant will guide you through every step of this complex process so that you can distribute your loved one’s assets according to their wishes while protecting your own interests.
We hope this blog has answered all your queries. If not, our professionals from Probate Consultants are just a call away from helping you receive the best assistance possible.
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