Probate courts

What are Probate Courts?

Probate is the legal process which allows the executor of a Will to manage and distribute the deceased’s assets and debts. To be able to administer a Will you need to get a grant of probate from the Supreme Court. A grant of probate verifies if a Will is valid and can be acted upon.

A probate court is concerned with the administration of deceased estates. It primarily handles:

• Wills;

• Estates – property, assets, debts; and

• Guardianships.

The main role of a probate court is to ensure that the deceased estate and assets are correctly distributed to the nominated beneficiaries. It covers the legal process of dealing with the deceased’s assets and debts and distributing them correctly. Each state in Australia has a registry or office within the Supreme court to deal with probate applications.

How do they work?

1 – Petition is filed

The process begins when a person (either the family member of the deceased, or the executor of the deceased’s Will), files a petition with the supreme court.

2 – Probate court determines if the deceased left a Will

The probate court then determines if the deceased person left behind a will. If that’s the case, the court looks to see if the will is valid.

If the Will is valid, the court will authorise the named executor or administrator to deal with the estate.

If there is no named executor, the probate court will appoint an executor or administrator to distribute the assets to beneficiaries.

3 – Probate court appoints an executor or administrator

The court then issues an order for an executor or administrator to be appointed for the deceased estate.

If you are named an executor in someone’s Will, you have the responsibility to distribute the deceased’s estate to the correct beneficiaries along with other administrative duties.

4 – If there is no valid will, the court allocates the assets to the next of kin

If the person passed away without a valid Will, the probate court distributes the person’s assets to their next of kin. Your next of kin refers to your closest living relative - through blood or marriage. The general hierarchy to determine your next of kin is as follows:

• Spouse or de facto partner;

• Eldest adult child;

• Parents;

• Siblings (over the age of 18);

• An individual identified by the coroner.

Probate Courts by States

New South Wales: The Supreme Court of New South Wales Probate Registry

• Applying for a grant of probate – a legal document that authorises the executor to manage the deceased estate if a valid Will was in place.

• Applying for Letters of Administration – a legal document issued by court which allows the administrator to manage or distribute the assets of the deceased if there was no valid Will or no executor named.

• Applying for commission – an executor or administrator may be entitled to a commission to compensate them for administering the estate. Find out more details here.

• Applying for Reseal of a Grant – if the deceased person owned assets in more than one state or country, it may be necessary to apply for a grant in each place where the other assets are located. Find out more here.

Victoria: The Supreme Court of Victoria

If a deceased person has assets in Victoria, the executor or next of kin will need to apply for a grant of probate to deal with the estate left behind. It can be done in the following ways:

• Lodging the application directly with the court;

• Instructing a solicitor or other professional to act on your behalf; or

• Authorising a trustee company to act as an executor.

The process of applying for a grant of probate or administration are as follows:

1. Determine whether a grant of probate or administration is required;

2. Determine which type of grant you should apply for;

3. Advertise your intention to apply;

4. Complete your application; and

5. Upload your documents.

The full requirements to lodge your application can be found here.

Queensland: The Supreme Court of Queensland

There are three main grant types you can apply for:

• Grant of probate - when the appointed executor of a valid Will is applying.

• Grant of letter of administration of the Will - when someone who is not named an executor in a valid Will is applying.

• Grant of letters of administration on intestacy - when no valid Will was written and someone needs to be authorised to be an administrator.

When it comes to applying for a grant, you must:

1. Advertise your intention to apply for a grant.

2. Give a copy of the notice to the Public Trustee - you can deliver the notice through post, fax, or email.

3. Wai for 14 days after your notice appears to give people time to object.

4. Prepare documents for your application.

5. File the application with the Supreme Court

See here for further details, and locate all the documents to lodge your application here.

South Australia: The Courts Administration Authority of South Australia.

All probate lodgements must be made electronically using CourtSA.

1. Determine whether a grant is required.

2. Determine which type of grant you should apply for

3. Collect all necessary documents and prepare any additional documents.

4. Login to CourtSA and complete the grant application forms here.

5. Lodge your application and pay the filing fee

6. Upload the original will.

See here for further details and locate all the documents to lodge your application here.

Western Australia: The Supreme Court of Western Australia

1. Determine if you need to apply for a grant of probate. The full requirements are outlined here

2. Gather the Will, original death certificate, any codicils (an addition that explains, modifies, or revokes a Will), and all statements relating to assets and debts. They must be in their original state.

3. Collect information on the following:

• Your full name and address.

• The deceased’s full name, address and marital status.

• The full names and addresses of the witnesses to the Will.

• The deceased’s assets and liabilities - including property and share details, bank account details, and registration details of any vehicles.

1. Decide if you should consult a lawyer or prepare the application yourself.

For more details on how to prepare your application, you can find the details here and locate all the documents and details around fees for your application here.

Tasmania: The Supreme Court of Tasmania Probate Registry

The Supreme Court of Tasmania has exclusive jurisdiction to make orders for:

• The validity of a Will of the deceased person.

• Appointment of an executor or administrator; and

• The administration of deceased estate.

To apply for a grant of probate:

1. Obtain the necessary supporting documents - including the original Will, and original death certificate.

2. Download the probate forms (you can find out which exact forms on the information kit)

3. Email your completed and proofed Notice of Intention.

4. Sign your probate forms

5. File your probate forms and supporting documents at the probate registry of the Supreme Court of Tasmania

You can read the information kit as a basic guide on how to apply.

Australian Capital Territory: The ACT Supreme Court.

If a deceased person left assets in ACT, the executor or next of kin of the deceased can apply for a grant of probate or administration to deal with the estate left behind.

To apply for a grant of probate or letters of administration you must:

1. Determine whether the grant is required.

2. Advertise your intention to apply.

3. Complete the forms required.

4. File your application with the court and pay the required fee.

Northern Territory: The Supreme Court of the Northern Territory

The Supreme Court Registry in both Darwin and Alice Springs provide kit forms that will give you guidance in making an application for your estate in the Northern Territory.

You can also find general information for each of the specific applications:

• Application for Probate

• Application for Reseal

• Application for Letters of Administration

• Application for Letters of Administration with will annexed

How can you make sure your assets are protected?

One way to ensure that your own assets are protected is to create a legally binding Will before you pass away. This is so you are able to reduce the burden on your beneficiaries and prevent the need to go to a probate court.

To ensure that your Will is binding, you must have all your assets and debts in your possession, and have it signed by a witness. You need to name an executor and advise them where to find your Will upon your death,

If you are ready to create your Will, Safewill has made the process easy and affordable, so you can sort out your end-of-life plans and make sure your assets are distributed according to your wishes. Get started today.