If you have lost a loved one, the tasks involved in finalising their estate can seem complex and worrying. Our blogs are designed to explain in simple terms what steps need to be taken and in what order, to minimise the overwhelm. We are also just a phone call or email away if you need help to navigate what needs to be done.
If you have been named an executor of a will or if you are entitled to apply for letters of administration and you have worked out that a grant is needed the next step is to make the court application for a grant.
Where to apply
Firstly, you need to decide where to apply.
In Australia, each state or territory has a different grant process. However, most will require a “connection” before they will issue a grant; e.g. for movable property (like bank accounts, cars, personal effects etc) the deceased must have lived there, or there must be assets in that state or territory (for example houses, land etc). Several grants may be needed in several states or territories within Australia or internationally, particularly if there is real estate in multiple locations. Fortunately, there are often ‘re-seal’ processes available where courts in other jurisdictions will recognise the grants made elsewhere to avoid cost duplications.
How to apply
Even if the grant applied for is not contentious, the process can still be complicated. If the will is “suspicious” because of concerns about lack of testamentary capacity or undue influence a more complex “solemn form” grant is needed.
The process for non-contentious grants will be a little different in each state. So, you need to be sure you are using a wills and estates lawyer practicing in the relevant location.
In Queensland, the process involves the following steps:
1. Advertise a notice of intention to apply
There is a standard form notice of intention to apply for a grant. This is, in effect, a notice ‘to the world’, which needs to be adapted for your estate and then advertised. The advertising needs to be made in a legal publication and for may also need to be advertised in a newspaper. In Queensland that legal publication is the Queensland Law Reporter. If multiple grants are needed in several states advertising in The Australian as opposed to the Courier Mail is recommended.
It is a good idea to include a creditor’s notice as part of the advertising. This will call for any money claims against the estate to be made within a set period of time so that there is certainty about estate liabilities. This advertising can’t always be done in one hit; for letters of administration it has to be broken up into two stages (so that the creditor’s notice can only be advertised after the grant has issued).
Once the advertising of the intention to apply for a grant has been done, a copy of this notice must be sent to the Queensland Public Trustee’s office. The Public Trustee is the state government office responsible for administering financial matters for people or estates when there is no-one else willing to take on that role.
2. Give people time to object
You need to wait seven days after giving the notice to the Public Trustee. Then, fourteen clear days after your notice appears in the legal publication (and newspaper), before filing your court documents. This gives people time to object. Anyone claiming to have an interest in the estate can file an objection to your application by filing a “caveat” in court.
If a person files a caveat, the application for the grant is put on hold until the objection is resolved.
3. File court documents
If there is no objection made, you can file the necessary court documents. These documents will usually consist of an application for the grant with supporting sworn statements (affidavits) made by the person/s applying. These statements will be filed with the will (if there is one) and the death certificate. They will explain why the grant should be issued to the person applying. There will be a separate affidavit confirming that the necessary advertising and service on the Public Trustee has been done.
There may be factors that add further complexity to the application. For example, if the cause of death on the deceased’s death certificate indicates that the deceased suffered from a medical condition at the time of making their last will which may have affected their capacity to make the will. Or where the will doesn’t contain all of the usual formalities like the required signing clause. If these factors arise, they can be dealt with. However, we recommend that you call us to avoid running into problems down the track.
Once complete, all of the documents are then filed in the court, where the probates registrar (the officer of the court appointed to deal only with probates) will review them. A court filing fee will be payable at the time the documents are lodged. A fee reduction can be requested if you are a pensioner, student or health care card holder or otherwise qualify under the financial hardship provisions.
4. Wait for the grant to issue
The probates registrar will review everything carefully. If everything is in order, the registrar can issue the grant – which can then be collected from the court (or posted to you by prior arrangement). This process can take several weeks.
If the probates registrar has any questions or concerns, the registrar might issue a ‘requisition’. That is just a fancy legal word for a document that sets out the problem and asks for it to be fixed. If that happens, the requisition must be dealt with before the grant is issued. If the issue isn’t simple and needs a judge to decide on a question, then the registrar will refer the matter to a judge for hearing.
This summary has been provided in a ‘simplistic’ way, there are quite a few steps that need to be followed precisely.
To help clients manage simple applications we offer a fixed fee probates and letters of administration service, where we take care of it all for you at a fixed cost. Contact us to receive our fixed fee probate and letters of administration pack setting out our costs for this service.
At Resolve Estate Law, we are here to help you navigate next steps in a calm and compassionate way. If you need help with applying for a Grant of Probate or Letters of Administration contact us by phone or email, or click here to arrange your complimentary 15 minute call.