Do I need to apply for probate?
A common question that arises after someone passes away is whether an executor needs to apply for probate. The answer depends on the specifics of the estate and the assets involved. Probate is the legal process of proving that a will is the last valid testamentary document of the deceased. It involves submitting the will to the Supreme Court for validation, providing certainty to the executor and beneficiaries when distributing assets. Here’s a breakdown of when probate may be necessary and the factors to consider.
1. Monetary and Asset Considerations
The most common reason to apply for probate is when the deceased’s estate contains substantial assets that cannot be accessed or transferred without it. Here are some key situations where probate is typically required:
Bank Accounts: Many banks will not release funds if the account holds more than a certain amount, usually around $20,000, without a grant of probate. For accounts like term deposits or business accounts under a sole trader, probate is often necessary regardless of the amount. It’s best to check directly with the bank to confirm their requirements.
Room Accommodation Deposits: If the deceased was living in a private nursing home, they likely paid a rooming accommodation deposit, which can range from $200,000 to $1 million. Nursing homes typically require probate before releasing this deposit back to the estate.
Multiple Properties: If the estate includes more than one property, probate is often needed for transferring ownership. While a will can be used for one property transfer with the land registry, probate offers the flexibility to manage multiple properties, either by selling or transferring them according to the will.
2. Protection for Executors
Applying for probate also offers protection to the executor by:
Limiting Liability to Creditors: In Queensland, probate requires advertising a notice to creditors, allowing them six weeks to make any claims against the estate. If no claims are made within this time, the executor cannot be held personally liable for any later-discovered debts.
Confirming Executor Authority: If the validity of the will or the executor’s appointment is disputed, a grant of probate helps establish that the will is genuine and that the executor is authorized to act on behalf of the estate. This can be particularly useful in avoiding conflicts with family members or other potential claimants.
3. Potential Will Contests
If there’s any possibility that someone may contest the will, applying for probate is a prudent step. It formalizes the validity of the will, providing a recognized legal document to rely on in the event of a dispute. This can be crucial in cases involving family provision applications or if there are concerns about the deceased's capacity or undue influence at the time the will was made.
4. Ease of Access to Assets
Having a grant of probate simplifies the process of dealing with various institutions. Banks, investment firms, and other asset-holding entities are more likely to cooperate with an executor who can provide a grant of probate, as it assures them that the executor has the legal authority to manage the deceased's affairs.
5. Timeframe and Process
The probate process typically involves:
Filing the necessary documents with the court, including the original will and the death certificate.
Advertising the probate application in the Queensland Law Reporter.
Waiting for the mandatory advertisement period to pass.
The entire process generally takes around 8-12 weeks, depending on how busy the court registry is. Applying early can help avoid delays in the administration of the estate.
When Probate May Not Be Necessary
There are cases where probate may not be required, such as:
If the estate consists of a single property that makes up most of the assets. The property can often be transferred using the will without a grant of probate.
If there are no significant assets held in bank accounts or other institutions. For small estates with minimal financial assets, probate may not be necessary.
Conclusion
Determining whether you need probate depends on the value and type of assets, the potential for disputes, and whether protection from liabilities is necessary. In many cases, probate is advisable, but there are situations where it may not be required.
If you are still unsure about whether probate is needed, or if you need help with the process, you can book a consultation with Vicca Law. Visit www.viccalaw.com.au or email Lidia at lidia@viccalaw.com.au for guidance. At Vicca Law, we offer fixed-fee probate legal services to help you navigate this legal process efficiently.