If you’ve suddenly found yourself in the position of being executor of a Will, you may have already heard and seen references to needing a grant of probate as well as a lot of other confusing legal jargon. As succession lawyers, we are frequently asked what a grant of probate is and why it is needed.
What is a grant of probate?
The term “probate” essentially means “proof” and relates to the process of proving a Will’s validity. A grant of probate represents official recognition by the Court that a Will is legally valid and that the person(s) appointed as executor(s) in it are authorised to administer the estate.
A grant of probate is just one of several types of “grants of representation” that the Court can make in relation to deceased estates. This article however focusses on the situation where there is a Will and one or more named executors.
A grant of probate is obtained by making an application to the Court and is usually granted by a probate registrar (as opposed to a Judge) provided the application is straightforward and there are no indications that the Will may be invalid. The process can take between two to three months on average, depending on the registry’s workload.
Grants of probate can be issued in hard copy or electronically and, in either case, comprise a cover page bearing the official Court seal and details of the estate in question with a copy of the Will attached.
Once made, the grant of probate is released to the executor(s) or their solicitors and the original Will is retained by the Court.
Do I need a grant of probate?
While it is not mandatory to obtain a grant of probate in Queensland, in many cases, you will need one due to the nature of the assets in the estate. For example, if the deceased held a bank account and the amount of money in the account exceeds a certain threshold (which can vary from bank to bank), the bank will require production of a certified copy of the grant of probate in order to release the funds held in the account. Bear in mind that institutions holding estate assets will be conscious to protect themselves from liability by ensuring they are only releasing assets to the right person(s). A grant of probate provides that assurance.
In other cases, you may not strictly need a grant of probate either because the estate is very modest in size and simple to administer or because other options exist enabling you to administer the estate without one. The obvious advantage of this is that the costs and delay associated with obtaining a grant of probate will be avoided.
The real question you should ask yourself however is “Should I obtain a grant of probate?”
Should I obtain a grant of probate?
What is not commonly appreciated is that obtaining a grant of probate gives the executor(s) an added level of protection that they will not otherwise have if they choose to proceed informally (i.e., without a grant of probate). Believe it or not, the legal term for informally administering an estate is called “intermeddling”. Despite the negative connotations of that term, intermeddling can occur with even the best intentions.
In relation to intermeddling, the law in Queensland provides that an executor without a grant will be personally liable to the extent of any loss caused to the estate by that person’s informal administration.
Potential liability issues could arise where, for example:
- the validity of the Will being informally administered is challenged at any stage by one or more people who seek to have the estate distributed pursuant to an earlier Will or, if there is no earlier Will, pursuant to the intestacy rules;
- part-way through or following the administration, another Will of the deceased which post-dates the one informally administered (and which potentially appoints different executor(s) and beneficiaries) is discovered;
- the informal executor commences or defends litigation brought by or against the estate (due to the costs and uncertainty associated with litigation);
- the informal executor is unable to claim on an insurance policy taken out over estate assets (for example, where a house belonging to the estate is damaged by fire) because he or she arguably does not, in the insurer’s view, have an insurable interest in the asset (due to acting informally);
- there is conflict between the executor and beneficiaries and therefore a higher than usual level of scrutiny of any steps taken by him or her, including whether he or she can indemnify or reimburse themselves for costs they have personally incurred for the estate out of the estate assets; or
- the Will appoints multiple executors but they are unable to work together for some reason. In this regard, the law in Queensland requires multiple executors to act jointly, thereby casting doubt on the validity of steps taken unilaterally.
Protection offered by a grant of probate
An executor who, in good faith and without negligence, obtains a grant of probate and who administers the estate properly, in good faith and without negligence pursuant to that grant of probate will be protected from personal liability even if that grant of probate is later revoked for some reason.
As can be seen, the risks associated with not obtaining a grant of probate (even if it is not strictly needed) can far outweigh the time and costs saved. In a worst-case scenario, an informal executor could find themselves having to resort to their personal assets to remedy alleged loss caused to the estate and/or the beneficiaries.