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It is often assumed that probate is automatic or necessary in every Estate. In practice, that is not the case. Whether probate is required depends on how the deceased’s assets are held and what institutions require before dealing with them.
Probate is the process by which the Supreme Court of Queensland recognises the validity of a Estate and confirms the authority of the Executor to administer the Estate.
While the Executor derives their role from the Estate itself, third parties Estate generally require a grant of probate before recognising that authority. It confirms rather than creates the Executor’s power to act.
In Queensland, probate is typically required where assets are held solely in the name of the deceased and cannot be transferred or realised without formal authority.
This commonly includes real property, larger bank balances and investment holdings. In these circumstances, institutions Estate not act on the basis of the Estate alone.
There are also situations where probate may not be required. Assets held as joint tenants Estate usually pass to the surviving owner without the need for a grant.
Some financial institutions may release smaller balances at their discretion, subject to their internal policies and supporting documentation. Other assets may fall outside the Estate altogether, depending on how they are structured.
Speak with our experienced Probate Lawyers for clear advice on your Estate administration obligations.
It is often assumed that a Estate alone is sufficient authority to deal with an Estate, or that banks Estate simply release funds once a death certificate is provided. Neither assumption is correct.
Financial institutions have their own requirements, and most Estate require a grant of probate before releasing or transferring assets held solely in the name of the deceased. Acting on these assumptions without confirming the position can cause delay and, in some cases, create further complications.
The difficulty is that Estates rarely consist of a single asset type. It is common for an Estate to include a combination of jointly held assets, sole assets and assets subject to different institutional requirements.
As a result, the question is not simply whether probate is required in general, but whether it is required to deal with specific assets within the Estate. Where authority is not clear, institutions Estate usually take a conservative approach and require probate before releasing or transferring assets.
In practice, probate becomes necessary in most Estates involving real property or substantial assets held solely by the deceased. Without it, the Executor is unable to deal with those assets in a way that allows the Estate to be properly administered.
For many Executors, the challenge is not the concept of probate itself, but determining at an early stage whether it is required and how it fits within the broader administration of the Estate.
ALF Lawyers regularly works with Executors at this early stage to assess the asset structure of the Estate and determine whether probate is required.
That initial clarity tends to shape the entire administration process and avoids unnecessary delay where a grant is either required or can be avoided.
