Probate: What is it and how does the process work?

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.

What is Probate?

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.

Can I apply for probate myself, or do I need a lawyer?

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.

How do you make a Probate application?

An application for Probate most commonly involves the following steps:

1. Legal notices are published to make sure any creditors or people who might be in a position to challenge the Will are given a chance to make a claim.
2. The Executor files an application for Probate to the Court (or relevant state or territory Probate authority) with the evidence and supporting documents required by local legislation. Supporting documents can include a death certificate, a Will, Codicils (updates to the original Will) and an Estate Inventory (a list of all the assets).
3. When the application has been approved, the Court issues a document called a Grant of Probate. This acts both as proof of an Executor’s authority, and the passport for them to deal with a range of third parties - including the ATO, real estate agents, banks and insurance companies - in connection with their Estate administration duties.
4. The Executor begins to carry out all the tasks that are required for the assets of the estate to be distributed to Beneficiaries under the terms of the Will. These can include:

• listing and selling real estate assets
• selling or transferring shares
• claiming nursing home bonds
• closing bank accounts
• paying off debts and settling expenses of the Estate.

The Executor can act in this job on their own, or they can team up with a lawyer to help and advise them.

How much does Probate cost?

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).

How long does Probate take?

There are several stages to a Probate application, each with its own time frame:

• Notice period: A legal notice is published regarding the intention of the Executor to apply for Probate. This notice needs to give 14 days advance warning so that Probate searches, claims and objections can be made. It also gives time for any contesting parties to come forward.

• Preparation of Documents: While waiting out the notice period, you can instruct a lawyer to start preparing the necessary documents for Probate. This might take about 1 to 2 weeks, or slightly longer if you are waiting for certain information such as the value of assets and liabilities of the Estate.
• Court preparation of the Grant of Probate: Once the necessary documents have been prepared and submitted, the Court will take about 4 to 6 weeks to process your application and make a Grant of Probate (the Court may be quicker than 4 weeks, but it depends on how busy they are).

• Administration of the Estate: The time frame for dealing with the Estate and distributing assets will depend on the size and complexity of the Estate and whether the Executor is acting by themselves or with the help of a legal advisor. So that Beneficiaries aren’t disadvantaged by delays, the law in each state and territory requires Estate administration to be completed within a reasonable amount of time.

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