Why is Probate needed if there is a will?

By Megan Grainger, Associate, Wills and Estates Team, Moray & Agnew Lawyers 

When a loved one passes away, the process of managing their estate can be overwhelming, especially when you are dealing with legal and financial matters.  One of the most common terms you will hear in this context is ‘“probate’”. But what exactly is probate and why is it necessary?

What is Probate?

A grant of probate of the last will of a deceased is the formal approval by the Supreme Court that the will of the deceased is the last valid will and confirms the authority of the executor(s) to administer the estate.
If the person passed away without a will (intestate), the Court will appoint an administrator to manage the estate in accordance with the legislation. 

Why is Probate required?

Whether probate is required is often dependent upon the asset holders of the deceased’s estate including:

• Banks if the deceased’s account balances exceeds their thresholds.
• Superannuation funds if there is no binding death benefit nomination and the funds are to be paid to the estate.
• Life insurance companies.
• Companies for shareholdings.
• Nursing homes where there is a Refundable Accommodation Deposit.
• To manage the deceased’s taxation matters.

What is the Probate application process?

The process for an application for probate is as follows:

• A notice of intention to apply by the executor/s in the correct format must be advertised in the Queensland Law Reporter and served upon the Public Trustee of Queensland.
• Once 14 clear days have expired, an application for probate, the original will and supporting affidavits are filed with the Supreme Court.
• If the Supreme Court is satisfied with the validity of the will and the application, a grant of probate will be issued. 
• Once probate is granted, the executor can access the deceased’s assets, pay outstanding debts, and make distributions to the beneficiaries. 

What is the cost of Probate?

Third party expenses:

• Supreme Court Filing fee $793.00 (or $144.70 for concession card holders).
• Queensland Law Reporter advertisement fee: $161.70.

Professional Fees:

• These are dependent upon the complexity of the estate and the application.

How long does it take to receive Probate

Generally, probate will be issued by the Supreme Court within 2two to 6six weeks from the date of filing the application. 

Can I apply for Probate without a lawyer

Probate may not always be a straight-forward process and legal expertise may be required to assist the executors in the process.

Some of the issues that can arise when applying for probate include (but are not limited to):

• The original will cannot be located and there is only a copy of the will.
• The appointed executors may not wish to act and substitute executors may not have been appointed under the will.
• There may be interference with the original will such as the staples being removed from the will, missing pages or physical damage to the will.
• Improperly executed wills.
• Indications that the deceased may not have had capacity at the time the will was made or were under undue influence.
• There is evidence that the will admitted for probate is not the last will.
• If the application for probate and supporting affidavits do not comply with the Supreme Court’s requirements, requisitions may be issued which require further information and amendment of the documents.

If any of the above situations arise, additional evidence and affidavits may be required to support the application for probate.  In some cases, a court appearance by a lawyer may be required .

Conclusion

While probate can be a time-consuming and sometimes complicated process, it serves as a safeguard for ensuring the deceased’s wishes are honoured and assets are properly distributed. If you’re unsure whether probate is needed or how to apply, it is always a good idea to consult with an experienced wills and estates lawyer who can guide you through the process.