Probate is a legal process that is undertaken to authorise the wrap up of the estate of a deceased person.
If you’re appointed as an executor of a will, it’s vital to know what probate is and the key steps involved in the process. In this blog post, we’ll take a closer look at how long it takes to obtain a grant of probate in Queensland, who can apply for it, and what factors impact the time taken to complete the administration of the estate.
What is probate?
Probate is a legal process that confirms the validity of the will and makes the executor the authorised person responsible for carrying out the wishes of the deceased. It’s a necessary step to be taken before the estate can be distributed. There are some exceptions, where probate is avoided.
During probate, the assets and liabilities of the deceased are identified. After debts are paid the remaining assets can be distributed according to the will or state law.
Who can apply for probate?
The executor named in the will typically applies for probate to the Supreme Court (Qld). This person is responsible for administering the estate and has the authority to distribute assets after receiving the grant of probate.
In the absence of a will, the Supreme Court will appoint an administrator to manage the estate. The administrator is usually a close family member or friend of the deceased.
How long does probate take?
Applying for a grant of probate can take around six weeks. The process of estate administration that follows the grant of probate can take anywhere from six to twelve months to complete in Queensland. When people ask how long probate takes, typically they are really asking how long it will take to settle the estate.
This timeframe typically involves the gathering of documents, the notification of creditors and beneficiaries, payment of debts, and the distribution of assets. However, the time taken can vary depending on the complexity of the estate, the size of the estate, and the court’s workload.
In Queensland, once probate has been granted by the Supreme Court, the executor or administrator is legally permitted to distribute the estate’s assets. However, there is a recommended waiting period of six months after the death of the decedent before any distribution occurs.
The executor or administrator must ensure that all the deceased’s debts are settled before any distribution of the remaining estate assets begins. After addressing all the liabilities, the executor or administrator can distribute the remaining estate property amongst the named beneficiaries in accordance with the directions stipulated in the will or, in the absence of a will, as per the intestacy laws of Queensland.
While the timeframe can vary greatly, typically, beneficiaries can expect to receive their share of the estate around six to twelve months following the decedent’s death, assuming there are no contentious issues or complications.
Key steps in the grant of probate process
The probate process involves several steps that must be completed before the estate can be distributed.
Collecting documents
The first step involves gathering all the required documents, including the original death certificate, will, and financial documents.
Lodging a probate advertisement
A probate advertisement is lodged in the Queensland Law Reporter and serves to publicise the executor’s intention to make a probate application. The Queensland Law Reporter is published every Friday, and there are timeframes to meet for both publication and before lodging an application for a grant of probate. There is a cost associated with the advertisement.
Filing with the court
Once the documents are collected and at least fourteen days after the probate advertisement has been published, the executor files an application for probate with the Supreme Court of Queensland.
There are a number of forms and additional documents that need to be completed such as an affidavit supporting application for probate, certificates of exhibit, and an affidavit of publication. A solicitor will help you navigate these.
A court filing fee applies which can be paid over the phone or via a bank cheque.
It can take four weeks for the Qld Supreme Court to review the application. This timeframe could be extended if further information is requested.
Notifying beneficiaries
All beneficiaries named in the will must be notified of the probate application.
Paying debts and taxes
All outstanding estate liabilities, ie debts and taxes owed by the estate, must be paid.
Distributing assets
Finally, the assets of the deceased person’s estate can be distributed according to the wishes stated in the will.
Key documents needed for the probate process
Several documents are required during the probate process, including:
- the orginal death certificate
- the original will
- financial documents such as bank statements and investment accounts
- insurance policies, and
- property deeds
Bodies Involved in Grant of Probate Process
Several bodies are involved in the process for probate and the management of deceased estates, these generally include the executor(s), beneficiaries, the Supreme Court of Queensland, and the Australian Taxation Office (ATO). And, of course, the Queensland Law Reporter publishes the intent to lodge the probate application.
The executor is responsible for managing the estate, while beneficiaries are entitled to receive their share of the estate.
The Supreme Court of Queensland oversees probate, and the ATO ensures that all applicable taxes are paid.
The Qld Public Trustee becomes involved in the probate process in Queensland under several circumstances. A copy of the probate advertisement is provided to them for their records.
Further, if the deceased person did not make a will, or if the appointed executor is unable or unwilling to act, the Public Trustee may be appointed to administer the estate. In situations where the executor requires assistance or the complexity of the estate necessitates professional management, the Public Trustee can also provide support. They may also become involved as an impartial third party where there is a dispute.
What Adds to the Time Taken for Probate?
Several factors can impact the time taken for probate to go through and for the estate to be settled. The court’s workload can affect the timeframe for obtaining probate. However, the more significant factors in settling the estate include the complexity and size of the estate, addressing disputes and setting debts.
Court Workload
In practical terms, the court’s workload can impact the timeframe for obtaining probate. If the court is dealing with a high volume of cases, it may take longer for the application to be processed and for probate to be granted. It’s always a good idea to seek legal advice to understand the process and timeframe involved thoroughly.
Complexity
The complexity of the estate is a significant factor. This can encompass the number and variety of assets the deceased owned, such as multiple properties, shares in various businesses, multiple bank accounts or complex financial investments. Each of these must be accurately assessed and valued, which can take significant time and expertise.
Disputes
Disputes among beneficiaries or issues with the original will itself can also lead to substantial delays. For example, if a beneficiary or potential heir contests the will, the probate process may need to be stalled until the dispute is resolved legally. This can often involve court hearings, and possibly appeals, extending the timeframe further.
Debts
If the deceased had numerous debts, the process of settling these can be quite time-consuming. All creditors must be identified and notified, and their claims validated before payment. In some cases, an asset may need to be sold to settle a debt, which can take additional time due to the need for valuation, listing, and completion of the sale process.
Why solicitors can help
Solicitors are experts in probate and estate planning and are therefore well-informed about the probate process, as well as estate administration. They can help the executor navigate the probate process, gather the required documents, and ensure that the application is legally valid. Additionally, solicitors can help resolve disputes among beneficiaries and ensure that debts and taxes are paid promptly.
Conclusion
In conclusion, navigating the probate process and settling an estate can often be a complex and time-consuming task. The process entails various elements such as gathering key documents, resolving disputes, settling debts, and distributing assets appropriately.
The complexity of the deceased’s estate, existing debts, and any ongoing disputes can all influence the duration of the estate administration process. Engaging the services of a proficient solicitor can provide invaluable assistance, ensuring the process is handled professionally, impartially, and in line with legal requirements.
Regardless of the circumstances, understanding the process of applying for a Grant of Probate and the bodies involved can be instrumental in making the process smoother and less stressful for all involved.