A Grant of Probate is a certificate from the Supreme Court of Queensland recognising that a particular Will is the last Will of the deceased, is legally valid and that the Executor/s are entitled to administer the Estate according to probate law.

The steps involved in obtaining a Grant of Probate are:

1. a notice of intention to apply for grant of probate must be advertised in the Queensland Law Reporter. The purpose of this notice is to allow anyone claiming to hold a different Will which gives them the right to administer the Estate, to come forward and lodge an objection before Probate is granted;
2. the same notice must be served on the Public Trustee (in case there is a more recent Will held by the Public Trustee or it believes it should administer the estate for some other reason);
3. when 14 days has expired from the date of the Queensland Law Reporter publication or service on the Public Trustee, whichever is the later, an application, supporting affidavits, the original will and original death certificate are lodged in the Supreme Court Registry. The original Will and original Death Certificate will not be returned as the Supreme Court retains these documents on their file. 

Section 44(3) of the Succession Act 1981 (QLD) stipulates that an executor or personal representative of an estate may distribute the estate of a deceased after 6 months from the deceased’s date of death provided they have not received notice of any application or intended application for family provision.  This generally means that a party may want to challenge the deceased’s Will for a share or greater share from the estate.

Section 41(8) of the Succession Act 1981 (QLD) then provides that such a proceeding must be commenced within 9 months after the death of the deceased. It is at the Court’s discretion whether to extend the time if it is satisfied that sufficient cause can be shown.  If the estate is distributed earlier than these times the Executor can be held personally liable.

If no notice is received within 6 months of the date of death, or notice is received but no application is received within 9 months of the date of death, then you can distribute the estate after this date and your interests as executor will be protected. 

For further information or if you need assistance with buying a home, contact one of our friendly conveyancing team on 07 4081 6700 or lawyers@marinolawyers.com.au