What is Probate?
Probate is a process where the will of the deceased is registered and verified by the court. In order to grant probate on a will, the court must be satisfied that the will maker has died, the will is authentic and valid and the executor is in fact the person appointed by the will.
Once probate is granted, all property of the deceased transfers to or vests in the executor in their capacity as the deceased’s legal personal representative. After this occurs the executor is responsible for the management of the estate.
Why is probate required?
Until probate is granted, all estate assets are frozen. However upon grant of probate, assets vest in the executor. The executor will usually need to show the grant of probate to banks and other institutions which may hold estate assets in order to prove they have the right to deal with the assets on behalf of the estate.
When is probate required?
You will probably need to get probate on a will if the deceased held bank accounts, shares or real estate solely in their name or if they owned real estate as a tenant in common with another person.
When is probate not required?
Probate is not necessary in all estate administrations. Probate is not required where no valid will was left by the deceased. In this case, where the deceased died intestate, letters of administration should be obtained instead.
Where there is a valid will you may not need to obtain probate if:
- the estate assets are relatively few or small;
- all assets were jointly owned with a partner or spouse (these automatically vest in the surviving spouse);
- the deceased’s only assets were personal possessions.
How do you get a grant of probate?
In order to obtain a grant of probate, the executor named in the will must apply to the Supreme Court. This is the role of the executor, however you can get help or engage a lawyer to make the application on your behalf, for a fee.
Probate generally involves a the following process:
- Advertise your intention to apply for a grant of probate;
- Wait 14 days after the advertisement is displayed for objections;
- Prepare and file the necessary documents to support your application. (You will require original copies of the will and death certificate.)
Are there time limits for obtaining probate?
In most States, an application for grant of probate must be brought within 6 months of the date of death, unless a family provision application or notional estate application has been made. If you try to make an application after 6 months, you must submit an affidavit to the court providing a reasonable explanation for your delay.
An application for probate can usually be made as soon as 14 days after the date of death.
How much does it cost?
Even if you make the application for probate yourself there are a number of fees and charges associated with the process. You may incur advertising fees, court filing fees, postage, death certificate fees and document preparation fees. Check for each State:
- Probate New South Wales
- Probate Victoria
- Probate Queensland
- Probate Western Australia
- Probate South Australia
- Probate Tasmania
- Probate Australian Capital Territory
- Probate Northern Territory