It’s one of the most commonly asked questions about Wills and the process of estate planning and administration in Australia.
In this post we give you an easy to understand guide to what Probate means, and what the process involves for your Will, or the Will of someone close to you.
Probate is the approval that is granted to an Executor of a Will by the Court to administer that Will.
Applying for (or “filing for”) Probate occurs after the death of the Willmaker, and involves making an application to the Court to approve theWill and give the Executor (the person named in the Will to manage the Estate) the authority to start carrying out the instructions in the Will on behalf of the Beneficiaries.
If a person dies without a Will (known as “dying intestate”) or without an Executor, the Willmaker’s next of kin needs to make an application for “Letters of Administration” rather than Probate. The application process for Letters of Administration is similar to Probate, but there are different documents involved. Once the approval is granted by the Court, the next of kin will be called the “Administrator” of the Estate (rather than the Executor).
In Australia there is a Probate Registry in each state and territory that handles Probate and Letters of Administration applications.
Applying for probate is a complicated legal process, with numerous involved steps including drafting affidavits and lodging documents with the Court. For this reason, while anyone is able to prepare a Probate application and lodge it with the relevant Court in their state, most people will engage a lawyer to ensure they do it correctly. While lawyers normally charge an arm and a leg for their services, modern law firms like Safewill Legal can provide transparent, fixed fee pricing and a higher level of service than would be expected when dealing with a lawyer.
An application for Probate most commonly involves the following steps:
The Executor can act in this job on their own, or they can team up with a lawyer to help and advise them.
The cost of applying for Probate in Australia will depend on which state or territory the application is lodged. It’s often based on a scale relating to the value of the Estate.
In NSW, for example, the current cost of Probate can vary from around $1,000 in the case of small Estates (worth under $150,000 ) to around $11,000 for larger Estates (worth $5 million or above).
For some very small value Estates, Probate isn’t required and there will be no cost or requirement to file for a Grant of Probate.
The Court filing costs are the same whether the application is made by the Executor or a lawyer acting on the Executor’s behalf. However, in the case where you hire a lawyer to help, legal costs will be added for their time spent dealing with the matter. To keep costs down without compromising on quality or service, law firms like Safewill Legal can provide fixed fee and transparent pricing (with Safewill Legal being the most affordable fixed fee service in Australia).
There are several stages to a Probate application, each with its own time frame:
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