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Probate
The passing of a family member or friend is a difficult time with much sorrow and grief. It is never an easy time in anybody’s life. The legal requirements that come with dealing with a will and an estate only make it more difficult.
Often, you will come across the term probate or grant of probate - especially if you are the appointed executor. So just what is probate? And do you need it?
This article will guide you through all there is to know about probate and what to do if you need to apply for it.
What is probate?
Probate is an order from the Supreme Court that confirms the validity of the deceased’s final will. A probate is usually required for banks and other financial institutions to release assets of the deceased to the beneficiaries as deemed in the will.
A probate proves the Supreme Court has recognised that:
- The will provided is true, accurate and the final will created by the deceased.
- The executor is entitled to distribute the assets among the recipients as deemed necessary in the will
If you are the executor of the deceased’s will and estate, and need to know exactly what is required of you, read our Role of an Executor article.
When is probate required?
The answer to this is not always clear, so it’s best to ask a lawyer with proven experience in dealing with probate. In general, probate is needed when the owned property of the deceased was solely in their name and/or their assets are over $50,000 in value.
So that financial institutions will release these assets to be transferred over to the beneficiaries, probate is generally needed.
For those with minimal assets, or jointly owned property (who’s ownership will be transferred by way of survivorship), in most cases, probate is not needed.
Who applies for probate?
The executor of the will is the person required to apply for probate from the Supreme Court. Applying for probate can be a difficult and confusing process, so it is recommended to have the help of an experienced lawyer when doing so.
What is the process of probate?
The process of probate can vary depending on numerous factors, but generally it goes as follows:
- Ensure that you are eligible to apply for probate - in order to apply, you must be the executor of the will and over 18 years of age.
- Advertise your intention to apply for probate - before applying for the grant of probate, you must advertise your intent to do so on your state’s online registry, such as the New South Wales Online Registry. This is done to allow any of the deceased’s creditors to get in touch with the executor. Also, it allows people to challenge the will, or give notice that they know of a more recent and/or final will than the one that is being used to apply for probate. The notice needs to be active for 14 days.
- Complete all forms and include necessary documents - as with any legal proceedings, there are forms that need to be filled out and documents that need to be included with your application.
Forms that need to be filled out include summons, affidavit of executor and the grant of probate document.
Documents you need to include with your application include the original will, death certificate(s) and if necessary translation of foreign language documents and identification of the deceased’s body if the deceased passed away overseas. - File your application with the court - once you have completed all necessary forms and documents, you must file your application with the Supreme Court. This can be done either in person or via post. You must also include an A4 self-addressed envelope in which the probate will be returned to you in.
- Pay the filing fee - it is best to do this at the time of filing your application. In most cases, you can pay your filing fee by cheque, money order, cash or through EFTPOS facilities. Your application will not be processed until the filing fee has been paid.
- Your application will be processed - the processing time varies on a case-by-case basis. For applications that are correctly filled out and provide all correct documents, there is usually a wait time of around 7 days. More complex applications will obviously require more time.
- Grant will be issued - once the processing registrar is satisfied with your application, it will be approved, and the grant of probate will be sent to you via mail, in the A4 envelope you provided. You are then able to move ahead with the process of distributing assets to the beneficiaries.
Please note that this process is just a general guide and will vary from state to state. You will find more accurate details for your state below:
How much does probate cost?
Again, this varies depending on the value of the deceased’s estate as well as from state to state. It’s best to check with your state probate or lawyer for costs applicable.
Can I deal with probate myself?
Yes, you can. Hiring solicitors to help with probate can become quite costly and so understandably you may wish to do this yourself to save costs.
A great tool that will help keep costs down as well as assist you in keeping track of everything involved with probate is eClosure. Their Probate Assist program will save you a lot of time and money as it assists you in everything from notification through to the Supreme Court submission. It will also do a thorough online search for any accounts that the deceased may have with numerous institutions.
You can also deal with probate completely by yourself, but as mentioned previously it always best to seek help from professionals who are experienced in probate.
If you require more information on probate please get in touch with an experienced lawyer or consult your state’s Supreme Court website, to help you get through the process.
