A probate is a court document confirming that the will of a dead person has been proved and registered and the executor named in the will has been empowered to administer the estate.
When a loved one passes away, there are numerous procedures that must be followed in order to administer their assets. Obtaining a grant of probate is sometimes one of them.
In this article, we will look at what is probate of a will in Australia, when it is necessary, and who can apply for it.
What is Probate of a will and when it is required?
A probate is an official legal document testifying that the will of a deceased person has been registered and an executor named in the will has the power to administer the estate.
That includes identifying and gathering the deceased person’s assets, paying any debts and taxes owed, and then distributing what remains to the beneficiaries named in the will. If there is no will, or if the will does not name an executor, then someone must apply to be appointed as administrator of the estate.
Do all wills have to go through probate in Australia?
Probate is necessary when a person dies with assets that must be administered and distributed. That includes property, money, investments, and any other assets that were not jointly owned by the deceased and/or another person.
In Australia, probate of will is generally required if the deceased owned:
- A house or land;
- had bank accounts solely in their name with a balance of about $50,000 (though this can vary from bank to bank);
- significant shareholdings exceeding $15,000 of value; or
- a substantial superannuation balance payable to their estate.
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Note: Other papers, such as a copy of the death certificate and the deceased person’s will, may be enough for a financial institution to pay out money if it is small amounts. Each financial institution has its policy regarding deceased estates, and it may be worth checking with them about your specific situation.
Do you need probate to make a life insurance claim?
Generally, no. Because a life insurance policy isn’t part of a deceased person’s estate, it isn’t automatically included in the payout. Instead, the policy usually specifies who will get the money if someone successfully claims it.
Many people have life insurance policies that mature upon their death. When the amount in the life insurance policy is under a certain limit, most insurance carriers are ready to pay out on these plans without probate or letters of administration.
However, with more complicated life insurance claims or higher value policies, a grant of probate may be required to clear up how the policy payout is to be distributed.
Even with more straightforward claims, the insurer may still require the person making a claim to provide documents. These could include a death certificate, birth certificate, Medicare records, and medical records from the policyholder’s doctor(s).
Despite the somewhat complex procedures in claiming the life insurance policy, this is still one of the best ways to ensure your loved ones are taken care of after your death. Alternatively, you could think about setting up an inheritance trust fund as a way to financially secure your family’s future if the unthinkable happens.
Who can apply for probate?
In Australia, the executor named in the will is responsible for applying for probate. However, if there is no will or it does not name an executor, someone must apply to be appointed as administrator of the estate.
In some Australian states and territories, you must be over 18 years old to apply., although this is not case everywhere.
How long does probate take?
The time it takes to get probate can vary, depending on the complexity of the estate and how long it takes to gather all the necessary information and documents. Generally, a grant of probate is issued within two weeks on average after an application is made. However, if more information is required, or if the registrar of probates has any concerns, the process may take longer.
How to apply for a grant of probate?
The application for probate must be made to the Supreme Court of the state or territory in which the deceased person was living at the time of their death. The forms and process can vary slightly depending on which state you are in, but generally, you will need to complete the steps described below.
The Supreme Court of the Australian Capital Territory’s guidelines includes the following points:
- To publish a notice of intent to apply for probate, the petitioner must do so in at least one daily newspaper published in the ACT and no later than 14 days before filing.
- If the designated executors do not make the application in the will, it must include a statement explaining why they are not doing so.
- You must fill out several documents and submit the original will to consider an exemption.
According to the Supreme Court of New South Wales:
- The applicant must publish an online notice of their intent to apply for a grant on the New South Wales Online Registry before applying and wait at least 14 days from the date of publication to file a Probate application.
- The Supreme Court of New South Wales aims to complete applications within five business days.
- All applications must be submitted to the Supreme Court of New South Wales Registry in person or by mail. The will and death certificate, as well as an application fee, are all required supporting documents.
To learn more about how you can get started with probate in Queensland, visit the court service’s website. Here is a brief overview of what you need to provide:
- You must publish a notice that you intend to apply for probate in the Queensland Law Reporter, which publishes official reports from the Supreme Court of Queensland and provide a copy to the Public Trustee for which you might be charged a marketing fee.
- After that, you must wait 14 days before submitting a claim. This allows interested parties to file an objection after the notice is published.
- After the notice period passes, you can submit your application and supporting documents (the will and death certificate) to the Supreme Court in person or by post. There is also a fee associated with this procedure.
- If approved, the grant should be ready in approximately three weeks.
The following are the Supreme Court’s instructions for applying for probate in the Northern Territory:
- The first step is to publish an announcement stating your intention to apply in the Northern Territory News’ Legal Notices section. That must be done at least two weeks before the application is submitted.
- All applicants must contact the Public Trustee’s Office before applying to verify whether or not the Office has a will prepared by the deceased.
- Applicants must submit the standard documents, including the application form, the original Will, and a certified copy of the death certificate.
- The Supreme Court of the Northern Territory offers a submission kit for those who want to apply. This kit includes detailed instructions on how and where to submit your application. It’s worth noting that there are several versions of the kit depending on where you live in the Territory.
- Applications for probate are subject to a fee.
The Courts Administration Authority of South Australia outlines the following points:
- The first step is to evaluate whether you need to go through Probate and whether the Court you submit can tell you if it’s required. It’s entirely up to the applicant.
- If necessary to apply, collect all required paperwork – original will, death certificate, and assets and liabilities information.
- The CourtSA website offers an easy-to-use application form. You’ll need to set up an online account with CourtSA ito fill out the form. Then you log in, complete the application form and pay a fee. The original must be sent by mail separately.
- Once you are approved for the grant, it will be issued online. You can access it by logging in to Courts. No paper copies will be sent to you.
- The Courts Administration Authority of South Australia has found that solicitors, the Public Trustee, or trustee companies file about 90% of applications for legal matters on behalf of the applicant, rather than by the individual themselves.
According to the Supreme Court of Tasmania:
- Applicants must give notice of their intention to apply for Probate at least 14 days before proceeding.
- You’ll need to gather the necessary supporting documentation for the application, including the original Will and original Record of Death.
- The prerequisites to becoming a Probate Registry Officer include completing and signing the forms, which must then be submitted with the supporting documents to the Supreme Court in Hobart either personally or by mail.
- Applicants can request (once again, for a fee) a preliminary evaluation of their application before submitting the full application.
The Supreme Court of Victoria’s guidance include:
- You must notify the court at least 14 days before submitting your petition. There is a fee for announcing your intention to apply.
- Applicants must print and complete the application form kit, which can be downloaded from the Supreme Court of Victoria’s website. It must be submitted in person at the Probate Office.
- The application is followed by several supporting documents, including the advertisement you placed announcing your intention to apply, the original will, and a photocopy of the death certificate. An application fee is also payable.
- If awarded, the grant will be posted to you after five to 10 business days.
According to the Supreme Court of Western Australia:
- To begin, the applicant must submit a copy of the will, the original death certificate, and any papers about assets and liabilities.
- He can submit the paperwork and pay the required fee at the Supreme Court of Western Australia in person or by mail.
- The Court says that it tries to process applications within ten business days, but sometimes the applications are more complex and take longer.
What issues can come up when applying for Probate?
When you apply for Probate, there are some things you should be aware of. The person’s will may be contested or challenged if someone believes the person:
- Lacks the capacity to write the will, namely, cannot make their own decisions.
- When they made their will, they were facing undue influence. Undue influence occurs when someone induces another individual to do something that the person would not otherwise agree to.
Additionally, getting the grant of Probate can be delayed by:
- Issues with the will, such as it not being witnessed correctly or destroyed
- An informal will is a document that describes the deceased person’s desires but does not fulfil the requirements for a valid will.
- Use a copy of the will – if you can’t locate the original.
Bottom Line
That’s it for the lowdown on what is Probate of a will in Australia! Hopefully, this article has answered all of your questions and you are now feeling confident about what to do if you need to apply for Probate.
FAQs:
1. When is Probate unnecessary in Australia?
Probate is only necessary for Australia when there is a will. The estate will be distributed according to intestacy laws if there is no will. Intestacy laws vary from state to state but generally distribute the estate equally between the deceased’s spouse and children, or if there are no children, between the deceased’s spouse and parents. If there are no surviving relatives, the estate may go to the government.
2. How long does Probate take in Victoria?
According to the Supreme Court of Victoria’s guidelines, you must notify the court at least 14 days in advance of submitting your petition. After you’ve completed the application, the grant will be posted to you after five to 10 business days.
3. How do I know if probate is required?
After understanding what is probate of a will in Australia, when it is necessary, and who can apply for it, you now know that probate is generally required when the deceased person owns property in their sole name. However, if the property is held jointly with another person, probate may not be necessary. Probate may also not be required if the estate’s value is below a certain threshold.
