About probate and grants
Probate is the Supreme Court’s recognition that a will is legally valid.
A grant is a Supreme Court document that recognises that you are authorised to deal with the estate of the deceased person.
As the executor of a deceased estate, you may need probate before you can take control of the estate’s assets (‘administer the estate’).
For example, you may need a grant of probate because some people or organisations holding assets of the estate will not release them without sighting a grant of probate.
However, you don’t necessarily need to apply for probate, so you should find out whether you need probate before you can carry out the terms of a will.
The area of law that deals with wills and intestacy (sometimes called Succession Law) is often complex and requires specialist legal advice.
The information provided on the Queensland Court website is of a general nature only and does not factor in any specific circumstances. Therefore, the information is a guide only and does not seek to replace legal advice.
Further, registry staff are unable to provide legal advice.
If your particular circumstances present concerns, we recommend that you seek independent legal advice from a legal practitioner.
For applications for grant of probate or Letters of Administration where the deceased person is eligible for redress pursuant to the Territories Stolen Generations Redress Scheme, the executor is able to seek assistance from knowmore Legal Service. For more information refer to knowmore Legal Service.
Types of grants
There are three main grant types:
- grant of probate—where a valid will was written and an executor named in the will is applying
- grant of letters of administration of the will—where a valid will was written and someone other than an executor named in the will is applying (the authorised person will be an administrator)
- grant of letters of administration on intestacy—where no valid will was written and the authorised person will be an administrator. The estate is administered according to the intestacy rules.
You may also need to reseal a grant of probate if another state grants the probate but assets are found in Queensland.
Do you need probate?
You should ask the organisation involved (e.g. financial institution) whether you need a grant of probate. You may not need one if:
- the value of the assets is relatively small (e.g. a small bank account)
- the real estate is to be transferred to a beneficiary named in the will
- you have to sell real estate.
You don’t need a grant of probate if the asset (e.g. the family home) is in joint names because it already belongs to the surviving joint owner.
The Land Titles registry has a special procedure for 2 and 3, and you don’t usually need a grant of probate.
Who can apply
Several people may believe they have the right to apply for grant of probate. If you believe you can apply, first rule out any other person claiming a prior right by filing Form 105 - Affidavit (probate application) showing evidence that they abandoned their claim or interest in the will, are incapacitated or have died.