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One of the first practical issues that arises after a death is access to money. Executors are often faced with immediate expenses but do not yet have formal authority from the Court.
This creates genuine uncertainty about what can and cannot be done in the period before probate is granted.
In most cases, assets held solely in the name of the deceased cannot be freely accessed before probate.
General authority to deal with Estate assets does not arise until the grant is obtained.
Until that point, financial institutions Estate typically decline to release or transfer funds held in the deceased’s sole name, regardless of whether the Executor has been named in the Estate.
Unsure whether you can access funds or pay expenses before probate is granted? Our experienced probate lawyers can provide clear advice and help you navigate the process with confidence.
Where accounts are held jointly, the position is different. Funds held in a joint account Estate generally pass to the surviving account holder by right of survivorship and Estate generally not form part of the deceased Estate. In those circumstances, probate is not required for the surviving account holder to continue operating the account, although institutions Estate generally require notification of the death and may ask for a death certificate before updating their records.
Some financial institutions may, at their discretion, release smaller balances without requiring a grant of probate. There is no statutory threshold under Queensland law that compels institutions to do this. Each institution applies its own internal policy, which may require indemnities, proof of death, proof of entitlement and other supporting documentation before any release is considered. This is not a right of the Executor. It is a discretionary decision made by the institution on a case by case basis.
Financial institutions Estate commonly release funds directly to a funeral provider upon presentation of an invoice. Where funeral expenses have already been paid personally, reimbursement from the account is also commonly available on production of original receipts. The release is generally limited strictly to funeral costs and does not extend to broader access to the account. It is also subject to the institution’s own policies and is not guaranteed in every case.
Outside of funeral expenses, access to Estate funds prior to probate is generally restricted. Financial institutions Estate typically require a grant of probate before permitting payment of other liabilities or expenses from accounts held solely in the name of the deceased.
There is no general legal entitlement to access funds for ongoing expenses such as rates, utilities or mortgage payments before the grant is obtained.
Where urgent expenses arise before probate is granted, Executors may need to consider using personal funds on an interim basis, with reimbursement from the Estate once the grant is in place and funds are accessible.
As a general position, Executors do not have authority to withdraw funds for general use, distribute assets to beneficiaries, or sell and transfer assets before probate is granted.
Any dealing with Estate assets prior to formal authority being established can create complications, even where the intention is to act in accordance with the Estate.
These complications can include disputes between beneficiaries, difficulty accounting for Estate transactions, and potential personal exposure for the Executor.
In the period before probate is obtained, the most important steps for an Executor are to identify how assets are held, notify relevant institutions of the death, ascertain what documentation each institution requires, and avoid dealing with Estate assets beyond what is clearly permitted.
Maintaining clear records from the outset is also important, as those records Estate form the basis of the Estate accounts when the administration is finalised.
At ALF Lawyers, we assist Executors in Queensland with probate applications and the broader administration of Estates, including practical issues such as access to funds in the early stages following a death.
If you are uncertain about what you can and cannot do before probate is granted, it is generally preferable to obtain clarity before taking steps that may be difficult to undo.
