During many an appointment with grieving family members, one of the areas of law I advise on, is whether a grant of probate is necessary in order to proceed with the administration of an estate. When charged with the responsibility of realising and administering an estate, aka being appointed as an Executor, the Executor must consider whether applying for a grant is necessary.
Generally, in Queensland (noting that all States and Territories in Australia have differing rules and legislation regarding wills and estates) informal administration is preferred. “Why incur an expense in obtaining a Grant if it’s a simple estate – amirite?” Well, in circumstances where an estate is comprised of even the most modest assets there are many pitfalls for the novice Executor. What if you have the wrong will? What if there is an informal will that you don’t know about until it’s too late? What if there is a debt that you simply weren’t aware of? It is recommended that the Executor apply for a grant, not only for the protection afforded by the Court’s imprimatur that you have the correct will, and security from estate creditors wrongly chasing you down, but also because many asset holders who will simply refuse to deal with the Executor until your appointment has been sanctioned by the court.
“So, what is a Grant of Probate?” I hear you say indistinctly while reading this. To put it in to basic terms, it’s a piece of A4 cardboard which wears a big red, circular, seal. This cardboard is stapled to the front of a photocopy of the Last Will and Testament of the deceased. The seal is then embossed with the imprimatur of the Supreme Court of Queensland so that it indents all pages of the photocopied Will.
Now I’m sure you’ve all heard the saying “Never judge a book by its cover” and while my explanation of the physical appearance of the grant sounds simple, its effect and operation certainly isn’t. The grant is both complicated and serious – I like to describe it as a passport; a critical document that allows you to travel from place-to-place while confirming who you are and that you’re not a stateless person purporting to hold some kind of authority and sense of identity. An Executor’s passport allows the Executor to attend the offices of asset holders on behalf of the deceased and is the Executor’s valid authority to collect in the assets, liaise with creditors, satisfy payments of liabilities and then attend to the allocated distributions to those intended beneficiaries.
As a general guide, the following institutions will require an Executor to obtain a Grant of Probate:
-Bank accounts with certain thresholds, i.e. CBA requires a grant for over $50,000.00;
-Aged care facilities holding refundable accommodation deposits;
-Brokers and financial advisers managing the deceased’s share portfolio.
If you need assistance in applying for a grant of probate, then we invite you to contact our office and arrange a free 30-minute free consultation with one of our estate administration solicitors.
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