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Do I always need a grant of probate to administer a deceased’s estate?

Obtaining a grant of probate from the Supreme Court is one of the main tasks that an executor of an estate may have to undertake.

However, in Queensland, it is not necessarily the case that a grant of probate will be required in every estate. 

What is a grant of probate?

A grant of probate is an order of the Supreme Court of Queensland. Once a grant of probate is obtained, it means that the Will of the deceased is proven and registered with the Supreme Court of Queensland.

Why is a grant of probate needed?

A grant of probate is often needed before the executor of a deceased estate can take control of the estate’s assets and administer the estate. A grant of probate acts as proof that the person named as executor is the person entitled to transfer or distribute estate assets.

Generally, the asset holders such as a bank or the titles office will not release the deceased’s assets or record a transfer to the executors, until a grant of probate has been produced.

When is a grant of probate needed?

In Queensland, it is important to have a clear understanding of the assets and liabilities of the estate to determine whether a grant of probate will be necessary. 

Below are some scenarios which will assist you to determine whether a grant of probate should be obtained in Queensland:

Financial institutions (banks, credit unions etc.)

If the deceased had a bank account, the financial institution will not release any information until a copy of the death certificate is made available.

Each financial institution has a policy in relation to when a grant of probate is required.

At the time of this blog, we are aware that if the following balances exist with the respective bank, the executor will require a grant of probate:

  • Suncorp Bank – $20,000
  • Commonwealth Bank – $50,000
  • ANZ Bank – $50,000
  • NAB – $50,000
  • Westpac – $100,000
  • BOQ – $75,000
  • Bendigo Bank – $50,000
  • CUA – $15,000

Joint property

A grant of probate will not be required for any of the deceased’s assets that are held as ‘joint tenants’ with another person, (as opposed to ‘tenants in common’).

The deceased’s interest in the jointly held asset will not form part of the deceased’s estate and will instead pass to the ‘surviving joint tenant’, without probate being required. This includes joint accounts, joint ownership of a motor vehicle or real property held as joint tenants.

Real property

If real property is held as tenants in common, the deceased’s share in that property will form part of their estate and a grant of probate may be required.

In Queensland, where the only asset of the deceased’s estate is their property, probate may be avoided.

Where this is the case, you may seek to transfer the property to the estate, or to a beneficiary, directly with the Titles Office.  In these circumstances, the Titles Office performs a role somewhat akin to that of the Court.

Shares

In our experience, if shares are held in the name of the deceased and valued over $15,000, a grant of probate will be required before the shares may be sold or transferred to a beneficiary.

The executor should contact either the relevant share registry or appoint a broker to sell or transfer the shares on their behalf.

Superannuation

In order to receive a deceased’s superannuation death benefit, an enquiry should be directed to the superannuation fund to enquire as to the deceased’s member balance, whether there is any life insurance component and whether the member had a binding death benefit nomination.

Under binding death benefit nomination, a superannuation member may nominate a dependent (spouse, child or someone they are in an interdependent relationship with) or their legal personal representative (i.e. their estate) to receive their superannuation death benefit.   

In the absence of a binding death benefit nomination, it will be left to the trustee of the superannuation to decide who will receive a deceased member’s superannuation death benefit.  

If there is no binding death benefit nomination, and the deceased had no dependents, this normally results in the superannuation death benefit being paid to the deceased’s legal personal representative. In this case, a grant of probate will be required.

Life insurance policies

If the deceased had life insurance, it will be necessary to contact the life insurer to determine its requirements to pay the life insurance.

The requirements will depend on the individual policy for the life insurance holder and whether any beneficiary nomination exists.

Nursing home accommodation bonds

In almost all cases, where an accommodation bond has been paid, the nursing home will require a grant of probate before releasing the bond to the executors. If you are unsure whether an accommodation bond existed, you should contact the relevant nursing home.

The above summary deals with the assets we regularly see in an estate. If you are unsure as to whether a grant of probate is required, please do not hesitate to contact us. Our team can provide fixed fee options.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Duncan MacDougall

Written by—

Duncan MacDougall

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