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Avoid These Top 10 Probate Myths

Avoid falling for common probate myths and experience a shorter, cheaper and less stressful probate process. In this blog post, our team of expert lawyers at Safewill Legal debunk the top 10 misconceptions; from the cost and duration of the process, to the function of a Will and the need for an expensive lawyer. Read on, get the facts and navigate probate with confidence.

Probate myths

A Probate Process Recap:

What is probate?

Probate is a legal process that takes place after someone dies. Before their estate can be distributed, probate essentially validates the legality of the Will, and authorises the executor to distribute the estate. A grant of probate is made by the Supreme Court, following the lodgement of an application.

If there's no Will, the estate distribution follows the laws of intestacy which incurs a slightly different, more complicated process known as Letters of Administration.

Below, our team of legal experts debunk 10 common probate myths:

  1. Probate always takes a long time

  2. Probate is always expensive

  3. If you have a Will, your estate will not go through probate

  4. Probate takes place in its own court

  5. Probate is always necessary

  6. The executor of an estate has unlimited power

  7. Probate is always a negative experience for families

  8. Probate only applies to wealthy individuals

  9. Probate is always contested

  10. Probate is a one-size-fits-all process

Spot any you’d nod along to? Then this article has something for you. Read on to armour yourself with the right knowledge, and make the current or future prospect of applying for probate that bit easier. Let’s dive in.

Myth 1: Probate always takes a long time.

Fact 1: The length of the probate process varies depending on the complexity of the estate, but it can often be completed in a matter of months.

Many Australians have fears around the probate process taking forever. In reality, this isn’t always the case. While it's true that the length of probate can vary depending on the complexity of the estate and which State the Grant is being applied for in, in many cases the legal process can be completed in just a few months. For some, probate is completed in even a few short weeks.

To find out more about the time it takes to obtain probate across Australia, click here.

Myth 2: Probate is always expensive.

Fact 2: While there are some costs associated with probate, such as court fees and legal fees, they can often be minimised through careful planning.

Probate costs are as inevitable as the process itself, but if you engage specialist probate lawyers, you can save yourself time, effort and money by having someone familiar with the probate process help with obtaining the grant. With this in mind, Safewill Legal is a specialist probate and administration law firm who offer a fixed-fee price for obtaining probate; helping you navigate the probate process, without breaking the bank.

Myth 3: If you have a Will, your estate will not go through probate.

Fact 3: Having a Will does not automatically avoid probate, although it can make the process easier.

Having a legally valid Will makes the process of applying to the court for a grant of probate much easier, by making it clear who the executor is and who will inherit the estate. Whilst a grant of probate may still be required, having a Will and executor named to administer the estate can cut back on time spent deciding who will be responsible for this role and working out who is eligible to apply under the relevant laws. Similarly, it sets out a roadmap for what to do with the assets in the deceased’s estate.

Whether you have a Will or not, probate may be necessary before the estate can be redeemed and paid to the beneficiaries. Whether probate is required often depends on what assets someone owns when they pass away, and how these assets were owned. The fact a Will makes this easier is an incentive to get this legal document completed, not avoid it all together.

Myth 4: Probate takes place in its own court

Fact 4: The Supreme Court in your Australian State or Territory handles all probate applications

This means that if you're seeking to administer an estate, distribute assets, or settle debts, you'll need to apply for probate or letters of administration through the Supreme Court in the State or Territory where the deceased lived (or owned the majority of their assets). Seeking advice from a solicitor can help you navigate this process with ease, cut back on costs in the long run, and get those all important court documents where they need to be.

Sometimes, if the deceased owned assets in multiple jurisdictions, you may need to get the grant re-sealed in another State or Territory. To find out more about re-seals, and when they might be required, check out this article.

Myth 5: Probate is always necessary.

Fact 5: Depending on the size of the estate and how it is structured,probate may not be necessary.

For smaller estates, a grant of probate may not be required. Knowing this from the offset can save time and money for families trying to navigate the process, and begin administration of the estate’s assets.

For example, some banks will release up to $100,000 without requiring a grant, whereas others will only release up to $10,000. If in doubt, it is worth checking with each asset holder whether they require a grant in order to release funds to the estate.

Myth 6: The executor of an estate has unlimited power.

Fact 6: The executor of an estate is bound by the terms of the Will and has to act in the best interests of the estate.

Any deviation from the terms in the Will could result in legal consequences for the executor, and could result in them being removed from the role. As such, it's important to choose a trustworthy person to handle the legal responsibilities of your estate, such as closing your bank accounts and selling your property - ensuring that your wishes are respected after your passing, and your family is supported.

Myth 7: Probate is always contested.

Fact 7: While some probate cases are contested, most proceed without any significant challenges.

It's actually very uncommon for Wills to be contested in Australia. Yes, when you write your Will there's a small chance it might get contested, but in contrast to the lack of control if you die without a Will and your assets are distributed according to the laws of intestacy, there's a whole lot more benefits to having a Will and estate plan in place than if you don’t.

Myth 8: Probate is always a negative experience for families.

Fact 8: While probate can be emotionally challenging for families, it can also provide closure and, when done right, can be very straightforward.

The process of applying for probate, and subsequently administering the estate, can bring about a feeling of closure for families, once the whole process is complete.

Historically however, traditional law firms have charged high fees for obtaining probate based on the value of an estate, which can leave families facing huge legal bills for estates that are relatively straightforward to administer.

At Safewill Legal, we offer transparent, fixed fee pricing that enables us to be clearer, more cost-effective and safer for our clients, which overall leads to a more positive experience for families following the death of a loved one.

Myth 9: Probate only applies to wealthy individuals.

Fact 9: Probate can apply to anyone who owns property or assets that need to be distributed after their death.

As we explained earlier, a grant of probate (or letters of administration) may be required in many situations, and it will all come down to what a person owned, or owed, at the time they passed away. There’s no set list of people, or types of families, that require probate instead of others.

Myth 10: Probate is a one-size-fits-all process.

Fact 10: The probate process can vary widely depending on the state in which the estate is located, as well as the size and complexity of the estate.

Just as each person and each Will is different, the probate process looks different for each estate. There may be different documents required, depending on whether there was a valid Will, whether the deceased had testamentary capacity, the complexity of the estate administration, and other personal factors.

Safewill Legal Can Help

So yes, probate can be stressful, it can be drawn out and it can be an expensive process. But with Safewill Legal, it doesn't have to be.

Aside from writing a valid and comprehensive Will, the best way to ease the Probate process is seeking help from a solicitor.

Safewill Legal is Australia’s most affordable fixed-fee probate or letters of administration service. We charge one fixed fee to obtain probate or letters of administration, regardless of the size of the Estate.

To find out more, reach us on 1300 942 586, or start a live chat now, to find out more.

Last updated 29th March 2023
Lauren Solomonson
Probate & Administration Lawyer at Safewill Legal
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