frequently asked questions
We sometimes use terminology that you don’t understand and are too polite to ask, “What the ..?”.
Here are the most frequently asked probate & estate administration questions (and the answers!).
A grant of probate is an order of the Supreme Court appointing an executor and attaching the last will of the deceased.
The executor named in a will applies to the Supreme Court for a grant of probate as evidence that the will annexed is the last will of the deceased, and the will was duly executed.
Letters of administration (on intestacy) is an order of the Supreme Court appointing an administrator of the estate of the deceased.
If the deceased did not make a will before they died, they are said to have died ‘intestate‘.
Who may apply to be the administrator of the estate is the person with the highest priority in a list contained in the Uniform Civil Procedure Rules 1999 (UCPR).
The person with highest priority can apply for a grant of letters of administration (on intestacy) as evidence that the deceased did not have a valid will at the time they died, and that the person named as the administrator is the proper person to administer the estate of the deceased.
Letters of administration (with the will) is an order of the Supreme Court appointing an administrator and attaching the last will of the deceased.
If the executor named in the will is unwilling or unable to be the executor of the will, a grant of letters of administration (with the will) may be made by the court appointing an administrator of the will.
The term “grant of representation” includes a grant of probate, letters of administration (with the will) and letters of administration (on intestacy).
A solemn form grant is an order of the Supreme Court that is made after the judicial determination of the validity of a will.
The validity of a will may require judicial determination if:-
- the willmaker’s testamentary capacity at the time of making the will is queried
- the willmaker’s signature is alleged to have been forged
- there is a query in relation to the due execution of the will – that is, whether the will was made with the willmaker’s “knowledge and approval”.
A grant of representation is likely to be required if:
- the deceased had over $50,000 in a bank account
- the deceased owned real property, died intestate and the gross value of the Queensland state exceeds $300,000
- the deceased paid a refundable accommodation deposit (RAD) to a nursing home
- a share registry or any other party requires it
- an estate dispute is likely
- for the protection of the executor/next of kin administering the estate
An executor is named in a will and is responsible to administer the will of the deceased.
An administrator is appointed by the court to administer the estate of the deceased either in accordance with the will of the deceased or, if the deceased did not have a will, the intestacy provisions.
There is a filing fee payable when an application for a grant of representation is lodged (“filed”) in the Supreme Court registry.
A reduced filing fee is available for applicants who hold certain concession cards.
When a person applies for a grant of representation, the applicant must advertise their intention to apply for a grant in the Queensland Law Reporter.
The Queensland Law Reporter is a weekly legal publication.
The information is collected in the probate notice database, allowing us to easily search for deceased’s family name and who has advertised a notice of intention to apply for a grant.
The legal fees and outlays incurred to obtain a grant of representation are paid out of the estate.
The legal outlays can be requested from the deceased’s bank, if they are paid directly in to a solicitor’s trust account.
If the personal representative pays for the legal fees and outlays from their personal funds, they will be reimbursed from the estate.
Testamentary expenses are the costs incurred by the estate after the death of the deceased – for example, funeral costs, legal costs and accounting fees.
There are a number or requirements for the proper execution of a will (listed in the Succession Act 1981) – for example, a will must be in writing and signed by the willmaker in the presence of two witnesses who are present at the same time. An informal will is a document that falls short of these requirements.
A Microsoft Word document on the hard drive of a computer, a message created and stored on an iPhone, a video, a DVD, an audio recording on a mobile phone have all been accepted by the courts as a “document” capable of being the last will of a deceased person.
An application for a grant of representation of an informal will document is more complex than a standard application.
When you die without a will (or without a valid will), you are said to have died “intestate” and your estate is distributed in accordance with the intestacy provisions of the Succession Act 1981.
A de facto partner is a “spouse” under the intestacy provisions if the de facto and the deceased lived together as a couple on a genuine domestic basis for a continuous period of 2 years ending on the deceased’s death.
The term “issue” of the deceased under the intestacy provisions includes all lineal descendants of a person.
“Issue” includes an adopted child but does not include a stepchild for the purposes of the intestacy provisions.
No, a stepchild does not benefit under the intestacy provisions.
A stepchild is, however, an eligible applicant to make a family provision application against the estate.
Yes, a stepchild is an eligible applicant to make a family provision application against the estate.
Part 4 of the Succession Act 1981 provides the mechanisms of a family provision application. Under Part 4, a “child” includes a “step child” of the deceased – that is, a person who is the child of a spouse of the deceased person.
The relationship of stepchild and step-parent stops when the deceased and stepchild’s parent divorces or the de facto relationship between the deceased and the stepchild’s parent ends.
The relationship of stepchild and step-parent does not end if the stepchild’s parent dies when the deceased and the step child’s parent were still married or in a de facto relationship at the time the step child’s parent died.
An eligible applicant who has been left out of your will or left inadequate provision by your will may apply to the court for further provision from the estate (thereby changing who you intended your assets will be distributed). This is an “family provision application”.
The following people are eligible applicants to make a family provision application against the estate:
- a spouse
- a child (including stepchild) of the deceased
- a dependant of the deceased – a dependant is a parent of the deceased, or the parent of a child under the age of 18 years, or a person under the age of 18 years, who was being wholly or substantially maintained or supported by the deceased person at the time of the person’s death.
