After the death of a loved one, there are a few things you need to do to carry out the wishes contained in their Will and to administer their estate.
One of tasks typically required of an executor is to apply for a grant of probate. What is probate, you ask? In this guide we’ll explain exactly what is probate in Australia and when it is necessary, who can apply for probate, how long does it take and what to do in each state and territory in Australia.
If you or someone close to you has recently lost a loved one, call Will and Estate Lawyers Australia today to discuss how we can help at this difficult time. We specialise in probate and deceased estate matters, and can offer fixed fee and deferred payment solutions to assist. Call today on 07 3073 2405 or leave your contact details below and a probate lawyer will call you to discuss your case (free of charge).
What Does Probate Mean?
Probate is proof from the Supreme Court that the Will of a person who has passed is valid. A grant of probate is the document issued by a Supreme Court which is recognition that the executor is the person with the right to deal with the property of a person who has passed away. Probate is not compulsory, in this article we discuss when you might need probate, who can apply and how long it takes.
When Is Probate Necessary?
As the executor of a will, you may need probate before you can take control of the estate’s assets. One of your central duties as an executor is to ‘administer the estate’ which involves collecting assets and distributing those assets to beneficiaries in accordance with the will.
For example, you may need a grant of probate because some people or organisations holding assets of the estate (such as share registries, nursing homes and banks) will not release them without sighting a grant of probate.
Probate is not always needed. A grant of probate is only necessary if the value is above a certain amount (usually $30,000). Every bank or credit union will likely have policies around deceased estates, so we recommend you make contact about your particular circumstances.
Other circumstances where probate is usually necessary include:
- If the deceased person holds shares in ASX or overseas listed companies, unless the holdings are less than $10,000 probate will likely be needed;
- If the deceased person owned real estate as ‘tenants in common’, a grant of probate may be necessary to transfer ownership. If property was owned as joint tenants, then the ownership may be transferred without probate.
It’s worth noting that every state and territory have different policies around probate, so it’s best to check with your local Supreme court.
Is Probate Necessary to access Superannuation Or Life Insurance?
To access a death benefit payment a super fund or life insurer may require proof of probate to distribute funds to the executor of the estate, particularly if there is no beneficiary nominated. If a valid nomination of a beneficiary exists, such as a binding death benefit nomination, then it may be possible for the fund to distribute funds direct to that beneficiary.
You should provide all information you can to the super fund to help them make their decision, which may includea death certificate, birth certificate, and medicare records.
If you aren’t getting anywhere, then let a will lawyer help you.
Who Needs To Apply For Probate?
The executor named in the will is the person with the right and obligation to apply for probate.
If the executor is unable (through death or incapacity) or unwilling to apply, then one of our lawyers can help move the process along.
Our fixed fee service for Probate applications in QLD costs $1490 + outlays of $954.70 for filing fees and advertising. Ask about our deferred payment solutions to help ease the burden at a difficult time. Call us on 07 3073 2405.
How Do I Apply For Probate?
The process of how to apply for a grant of probate is different in each state and territory across Australia.
Here is an overview about the process of applying for probate in NSW, QLD, VIC, TAS, WA, and SA.
Applying for probate in Queensland
- When applying for probate in Queensland you must complete several steps;
- First, advertise your notice of intention to apply and serve it on the relevant parties, including the Public Trustee of Queensland;
- Before filing, allow 14 days to pass for people to object to your application;
- If you do not receive any objection, you may proceed to file your probate application.
Applying for probate in Victoria
- As per other states, an application for probate in Victoria requires you to first advertise your intention to apply;
- At least 15 days must pass from the date of advertisement before you lodge any documents;
- The court documents include an application and affidavit detailing the assets and liabilities of the estate;
- The Supreme Court notes 95 per cent of applications are filed by solicitors or Trustee Companies;
- Once signed and witnessed by a public notary, solicitor or person authorised to witness affidavits, your documents can be filed.
Applying for probate in New South Wales
- Before you can apply you will need to advertise your notice of intention to apply for a grant of probate on the New South Wales online registry;
- You must allow at least 14 days to pass before you can file your probate application;
- Your application must be supported by an affidavit detailing an inventory of assets and liabilities of the estate;
- You must pay the filing fee which varies depending on the size of the estate;
- Once you file your application, you will receive a case number which is used as your reference for future matters and requisitions related to your case.
Applying for probate in Tasmania
- As is always the case when applying for probate, in Tasmania you should ensure you have the original will with you before you start the application;
- Step 1 is to advertise your notice of intention to apply which is published on the Supreme Court of Tasmania website;
- Step 2 is to lodge the probate forms which include an application, affidavit and inventory or assets and liabilities;
- The Tasmanian Supreme Court offer a helpful 19 page guide to assist you with the process;
Applying for probate in South Australia
- In South Australia, probate applications are dealt with electronically, so the first step is to register and log in to CourtSA to complete the grant application;
- As the documents are completed online, you should ensure you have with you the original will, death certificate, and identification documents (to identify the deceased’s legal name and any aliases);
- Lodge your application and pay the fee.
Applying for probate in Western Australia
- If the deceased passed away in WA leaving property there which is not jointly held with anyone else, then you will need a grant of probate;
- If you can locate the original will, and there are no other irregularities (such as rips or tears in the will etc) then you can apply for probate online;
- You will need: 1. The original will. 2. The original death certificate. 3. An original codicil (if applicable). 4. All the statements relating to assets and liabilities.
- An application for Probate can be made from 14 days after the will-maker’s death.
Applying for probate in ACT
- In addition to the application and supporting affidavit required in other jurisdictions, in the Australian Capital Territory you must also file an affidavit for search.
- You must publish your notice of intention to apply for probate in a daily newspaper circulating in the ACT not less than 14 days and not more than 3 months, before the day the application is filed in Court.
Applying for probate in Northern Territory
- A notice of your intention to apply for a grant of probate must be published in the NT News no sooner than 14 days prior to the submission of the application;
- Details of the value of the assets and liabilities of the deceased at the time of death are required to be submitted to the Probate Registry.
Summary
Now you understand what Probate means in Australia you will be better placed to handle the complex world of estate administration.
If you or someone close to you has recently lost a loved one and needs help as an executor of a will, get in touch with the team and Will and Estate Lawyers Australia for a free, no obligation telephone consultation to help you through this confusing and difficult time.
Need help with Probate or Estate Administration?
Leave your contact details below and a probate lawyer will call to discuss your case.
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