When grieving the loss of a loved one, it can be difficult to consider the practical realities involved in administering a loved one’s estate. If you have been appointed as an Executor under a loved one’s Will, it is your role to administer their estate. Estate administration involves gathering in your loved one’s assets, ensuring any debts are paid and distributing their assets in accordance with the terms of their Will.
As Executor, one of the questions that you will need to consider is whether you need to obtain a Grant of Probate in order to administer your love one’s estate.
What is a Grant of Probate?
A Grant of Probate is an official document granted by the Supreme Court of Queensland which confirms that a deceased’s Will is valid, which in turn validates your appointment as Executor under that Will.
Does an Executor need a Grant of Probate?
In Queensland, it is possible to administer an estate without obtaining a Grant of Probate. Whether you are able to depends on the assets that form part of the deceased’s estate and the value of those assets.
Jointly owned assets
A Grant of Probate is only required to administer assets solely owned by the deceased. If the deceased owned assets jointly with another person, those assets do not automatically form part of their estate. Instead they pass to the surviving joint tenant by way of the rule of survivorship. Take the example of a wife who has recently lost her husband. If the couple owned their home together jointly (as joint tenants) and had a joint bank account, these assets would pass to the wife by way of survivorship and no Grant of Probate would be required.
Solely owned assets
In Queensland, it is possible to transfer land owned by the deceased person without a Grant of Probate. This is different to other States like New South Wales where a Grant of Probate is required to deal with the transfer or sale of land.
For assets such as bank accounts, investments and shares, whether you can deal with those assets without a Grant of Probate depends on the type of asset and its value. For example, some bank accounts can be closed without a Grant if the combined value of the accounts are less than a certain amount. Many banks require a Grant of Probate if the combined value of the deceased’s accounts are more than $50,000, although we are aware of at least one bank who requires a Grant of Probate if the balance is in excess of $15,000.
Where the deceased lived in a nursing home or aged care or retirement village, a Grant of Probate is usually required in order to have the Refundable Accommodation Deposit or Exit Entitlement paid to the estate.
A Grant of Probate may also be required to have any death benefits payable under a superannuation policy paid to the deceased’s estate.
Why should an Executor obtain a Grant of Probate?
Executors may be held personally liable for their actions in administering an estate. If you obtain a Grant of Probate, the Supreme Court of Queensland has authorised you to deal with the deceased’s estate. This provides an Executor with a level of personal protection when administering the estate if for example, a later Will came to light or in the event that a family provision claim arose.
If an estate asset is over a certain value, you will be unable to gather in that asset without obtaining a Grant of Probate. This is so that the institution holding the asset is satisfied that they are releasing the asset to the correct person.
Pros and Cons of obtaining a Grant of Probate
There are numerous pros and cons when considering whether an Executor should obtain a Grant of Probate, some of which are set out below:
Pros
Protection from personal liability as Executor - A Grant of Probate provides an Executor with a degree of personal protection when administering the estate.
Ensures that the Executor is able to gather in all of the deceased’s assets - If an Executor has obtained a Grant of Probate, you can safely assume that the institution holding the deceased’s asset will allow the Executor to deal with/collect in that asset.
Ability to deal with tax affairs. It is the Executor’s responsibility to ensure that the deceased’s lifetime tax affairs and those of the estate are finalised. However, the Australian Taxation Office only fully recognises the authority of an Executor when that Executor has obtained a Grant of Probate. As a result, it is difficult to properly finalise taxation matters without a Grant of Probate.
Cons
Cost - It is more costly to the estate to obtain a Grant of Probate. Costs include the Queensland Law Reporter’s fee for publishing a notice of your intention to apply for Probate, the filing fee charged by the Supreme Court of Queensland to lodge your application for Probate, and your solicitor’s professional fees in preparing and lodging the necessary application on your behalf. However, Executors are entitled to have all reasonable costs associated with administering the estate, including the costs of obtaining legal advice and assistance, paid for from the estate assets, not from the Executor’s own pocket.
Time – Depending on their current workload, it can take the Supreme Court of Queensland anywhere between 4-8 weeks from the date of lodgement of your application to issue a Grant of Probate.
Whether or not you need a Grant of Probate, or even if you do not need one, whether you should obtain a Grant of Probate, will depend on the specific circumstances surrounding the estate administration. An Executor should seek legal advice from an experience deceased estates solicitor in order to determine the appropriate way forward. The award-winning Wills and Estates team at Robbins Watson are able to advise on whether a Grant of Probate is required and all matters relating to the estate administration.
Article by Louisa Daniels, deceased estate solicitor at Robbins Watson Solicitors.
Louisa specialises in deceased estate administration and estate planning. See her full bio here:
https://robbinswatson.com.au/our-people/louisa-daniels