In Queensland, the process of administering a deceased person’s estate involves legal procedures to ensure that the deceased’s assets are distributed according to their Will or, if there is no Will (otherwise known as dying “intestate”), according to the laws of intestacy. This process is governed by obtaining either a Grant of Probate of the Will (if there is a Will with named executors) or Letters of Administration (if intestate or none of the executors named in the Will are available to act). Understanding the differences between these two legal instruments, and under which circumstances each is required, is crucial for executors and administrators involved in estate management.

What is Probate?

Probate is a legal document issued by the Supreme Court of Queensland that confirms the validity of a deceased person’s Will and grants the executor(s) named in the Will the authority to administer the deceased’s estate according to the terms of the Will. It is essentially the Court’s endorsement of the Will and confirmation of the executor(s)’s right to act on behalf of the estate.

When is Probate required?

In Queensland, whether Probate is necessary depends on the size and nature of the deceased’s estate, the requirements of the institutions holding the deceased’s assets, and whether the estate is complex or subject of a dispute.

Probate is typically required for:

• Large estates: The estate includes significant assets in the sole name of the deceased such as real estate, large sums of money held in bank accounts, or shares held in portfolios. Banks and other financial institutions often set thresholds above which Probate is required to release funds or assets. These thresholds vary between institutions but typically range from $15,000 to $50,000. Executors need to check with the individual institution to determine if Probate is necessary to release the assets of the deceased. 
• Real estate: When the deceased owned real estate solely in their name or as a partial interest as tenants in common, Probate is often, though not always, necessary to transfer real property to the beneficiaries.
• Complex estates: Probate is generally needed for estates with complexities, such as multiple beneficiaries, contested wills, or significant liabilities. Probate helps provide a clear legal authority to the executor(s) to manage and distribute the estate.
• Disputed Wills: If there is any contention or dispute regarding the validity of the Will, Probate is required to confirm the Will’s legitimacy through the Court. This helps ensure that the estate is administered according to the deceased’s last valid wishes, noting that Probate does not prevent the terms of the Will from being challenged by those with legal standing to do so (spouses, children, and dependants).
• Refundable Accommodation Deposits: Often nursing homes, aged-care facilities, and retirement villages will require Probate to release the initial deposit (sometimes called and “exit entitlement”) paid by the deceased for the right to reside in the respective accommodation.

When is Probate not required?

While probate is often necessary, there are situations where it may not be required:

• Jointly owned assets: Assets held jointly with another person, such as a house held as joint tenants or a joint bank account with a spouse, typically pass directly to the surviving owner as these assets will not form part of the deceased’s’ estate due to the right of survivorship, which allows the asset(s) to transfer directly to the other joint owner(s) without the need for Probate.

• Small or low-value estates: Probate may not be required for small estates, especially if the total value of the assets falls below the thresholds set by banks and other financial institutions.      

• Simple personal estates: Estates that primarily consist of personal items and do not include real estate or large financial holdings may not require Probate.

• Uncontested estates: In cases where there is no dispute over the will’s validity or the distribution of assets, and where all beneficiaries agree, the need for Probate might be bypassed.

Process of Obtaining Probate

The process of obtaining Probate in Queensland involves several steps and executors often seek professional legal assistance with the Application as the filing requirements of the Supreme Court of Queensland must be strictly adhered to. Generally, the process for obtaining Probate is as follows:

• Advertising the intention to apply for Probate: The executor(s)’s intention to apply for Probate must be advertised in the Queensland Law Reporter a minimum of 14 days before the Probate Application is filed with the Supreme Court of Queensland. This is done to inform potential creditors and interested parties of the Application.
• Filing an Application: The executor(s) named in the Will must file an Application for Probate with the Supreme Court of Queensland. This includes submitting the original Will (noting that if only a copy of the Will exists, it is assumed by the Court that the Will was destroyed by the testator and this assumption must be overcome before Probate granted, otherwise the estate will be treated as intestate), the death certificate, and the various forms and affidavits required with the Probate Application.
• Court review: The Court reviews the Application to ensure the Will’s validity and that the applicant(s) is/are the rightful executor(s).
• Issuing a Grant of Probate: Once the Court is satisfied the Will is valid, it issues a Grant of Probate which allows the executor(s) to manage and distribute the estate. This normally occurs withing 4 – 6 weeks of filing the Probate Application.

Letters of Administration

Letters of Administration are granted by the Supreme Court of Queensland when a person dies without a valid Will (intestate) or when the named executor(s) is/are unable or unwilling to fulfill their duties. Similar to Probate,  a Grant of Letters of Administration gives the appointed administrator(s) the legal authority to manage and distribute the deceased’s estate according to either the Will or the laws of intestacy, depending on the circumstances.

When are Letters of Administration required?

Letters of Administration are necessary when:

• No valid Will: The deceased did not leave a Will, or the Will is deemed invalid due to issues such as lack of testamentary capacity or proper witnessing of the Will being signed by the deceased. 
• Executor unavailable: The appointed executor(s) in the Will is/are deceased, unwilling or unable to act, and no alternate executor(s) is/are named in the Will or are available.
• Partial Intestacy: The Will does not cover all the deceased’s assets or does not appoint an executor.

Process of Obtaining Letters of Administration

• Eligibility: Not just anyone can apply to be administrator of an estate. There is an established order of priority for who can apply for a Letter of Administration. The priority is as follows:

• • • Spouse or De Facto Partner: The deceased’s legally married spouse or recognized de facto partner has the highest priority;
    • Children: If there is no surviving spouse or partner, the deceased’s children are next in line. This includes both biological and legally adopted children;
    • Parents: If the deceased has no spouse, partner, or children, the parents can apply for Letters of Administration;
    • Siblings: In the absence of parents, the deceased’s siblings, including half-siblings, are the next eligible applicants;
    • Nieces and Nephews: If there are no siblings, the deceased’s nieces and nephews can apply;
    • Grandparents: The deceased’s grandparents can apply if no closer relatives are available; 
    • Aunts and Uncles: If there are no grandparents, aunts and uncles may apply;
    • First Cousins: First Cousins may apply if none of the above are available; and
    • Anyone else the Court may appoint: If none of the above are available the Court may appoint anyone it deems appropriate. This includes more distant relatives or an appropriate administrator if there are disputes among potential applicants or if special circumstances exist that require it, such as the Public Trustee. 

An applicant with lower priority can still apply for Letters of Administration by providing evidence with their Application that each person higher in the order of priority is not entitled to priority because of death, incapacity, or renunciation. Evidence of priority may include the death certificates of, or forms of renunciation of the right to administer the estate signed by, anyone with higher priority. It is not necessary to evidence priority to anyone equal or lower in priority to the applicant. 

• Filing an Application: The applicant must file a similar application to that of Probate, including the death certificate of the deceased and any documentation that demonstrates their right to administer the estate.
• Advertising the Application: The Application must be advertised in the Queensland Law Reporter a minimum of 14 days prior to filing the Application, similar Probate, to notify potential creditors and interested parties.
• Court review and Grant: The court reviews the Application to determine the applicant’s right to administer the estate and issues the Letters of Administration accordingly. As applications for Letters of Administration require more scrutiny by the Court, it generally takes between 6 – 12 weeks for a Letter of Administration to be granted.

Executor and Administrator Responsibilities

Once Probate or Letters of Administration has been granted, executors / administrators have critical roles in ensuring the deceased’s estate is handled efficiently and in accordance with legal requirements. It’s important for those in these roles to understand their responsibilities and seek guidance as needed to fulfill their duties effectively. These duties include:

• Identifying, securing and valuing the estate’s assets.
• Paying off the estate’s debts and liabilities.
• Keeping detailed records of all actions taken when administering the estate.
• Communicating with beneficiaries.
• Filing the estate’s tax returns.
• Distributing the remaining assets according to the Will or intestacy law.

Executors and administrators often need to seek legal or financial advice to fulfill their duties properly, especially in complex estates or those involving disputes.

Our experienced estate law team at Stone Group Lawyers can assist with navigating the complexities of estate administration. Give one of our estate lawyers a call today on (07) 5635 0180.