WHAT IS PROBATE
‘Probate’ refers to an order made by the court which confirms that:
- the Will is valid
- the executor appointed by the Will has the authority to collect and deal with the assets of the estate.
Grants of Probate are legal documents that enable the executor or administrator to finalise a deceased person’s financial and legal affairs.
HOW IS PROBATE OBTAINED?
Probate is obtained by the executor of the Will applying to the Supreme Court seeking an order for probate. In most states, the executor must provide the court with a summary of the estate including its assets and liabilities.
A probate application consists of a number of documents including:
- the executor’s affidavit
- an inventory of assets and liabilities (in most states)
- a copy of the executor’s advertisement advising of the intention to apply for probate
- the original Will
- a certified copy of the full death certificate.
WHAT IS AN EXECUTOR?
An executor is the person or group of people appointed in a Will to administer the estate. The executor will generally be required to do the following:
- Locate the Will.
- Arrange the funeral in consultation with family members.
- Identify the assets and liabilities of the estate.
- Collect and protect the estate assets including making sure the assets are insured.
- Apply for probate of the Will.
- Pay the estate liabilities.
- Finalise taxation for the deceased and the estate.
- Defend the Will against any challenges.
- Notify relevant authorities such as Centrelink, Medicare, local council and insurance companies.
- Distribute the estate in accordance with the terms of the Will.
DOES EVERY WILL NEED PROBATE?
No, not every Will and estate needs probate. It depends on the nature and extent of the estate assets. If the estate assets are of minimal value, it is usually possible to deal with them without probate.
Probate is not required to transfer jointly held assets to the surviving owner. However, probate is usually necessary if the deceased was the sole owner of real estate.
HOW LONG DOES IT TAKE TO GET PROBATE?
The time it takes to obtain a Grant of Probate depends on the complexity of the estate. Before filing the application with the court the executor needs to ascertain the estate’s assets and liabilities. Sometimes this can take several months.
Once the application has been filed with the court it usually takes up to 3 weeks for the court to review it and make the grant. It can take longer depending on how busy the court is.
WHAT IF THE COURT HAS FURTHER QUESTIONS?
In some cases, the court might need more information about the application. If this is the case the court will issue the executor with a list of questions called ‘requisitions’. The executor will need to answer these questions before the court will provide the Grant of Probate.