Welcome to Safewill Legal’s comprehensive guide on Probate of Wills in Australia. Whether you're uncertain about navigating probate records, the process which grants probate to a deceased estate, or just unsure on whether you need a solicitor- you’ve arrived at the right place.
Below, we offer a clear and concise breakdown on what Probate of Wills are, how to apply for probate as a legal personal representative, and why this is a crucial part of administering deceased estates.
This information will benefit planning your own estate's assets, as well as handing the estate and wills of a deceased person.
Probate is the legal approval that is granted to an Executor of a Will, or Administrator, by the Supreme Court probate office. This legal document enables the Executor to access the assets of the deceased- giving them the legal right to deal, manage and distribute deceased estates in alignment with the wishes outlined in the will of the deceased person.
Grants issued to an administrator or executor also stand as the legally valid document which validates their position as the deceased's personal representative- managing business affairs and clients, as well as dealing with property and investments involved in the deceased's financial planning.
Applying for (or “filing for”) Probate occurs after the death of the Willmaker, and involves making a probate application to the Supreme Court. Granting probate involves the court approving the legal validity of the Will and granting the Executor (the person named in the Will to manage the Estate) the authority to administer the estate on behalf of the beneficiaries.
Without a grant of probate from the Supreme court, the executor cannot manage the deceased's assets and liabilities. This can create issues as the assets of the deceased, including their investments and property, won't be protected by a trusted manager.
Delay in grant of probate means no one has the powers to give advice on financial or property matters, family disputes, or ensure any testamentary trust is enabled and trustees receive assets.
For this reason, it's important to apply for a grant of probate soon after a death.
If a person dies without aWill (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. Grant of letters of administration enables the same powers to the appointed person. This authority to deal with the deceased's estate allows for the deceased's wishes to be carried out, and assets distributed amongst beneficiaries, even if a person dies without a will.
The application process for Letters of Administration is similar to Probate, but there are different documents involved when a person dies without a will. 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 steps requiring expert legal knowledge; including drafting affidavits and lodging documents with the Supreme Court. This can generally be time consuming or overwhelming for family members to navigate alone.
While anyone is able to prepare a Probate application and lodge it with the relevant Court in their state, most people will engage an estate lawyer to give advice and ensure they do it correctly. This advice comes with the benefit of peace of mind for family, children, a trustee and beneficiaries, by ensuring the validity of the legal document.
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.
Applying for probate is necessary, but the financial burden doesn’t have to be. Make sure to shop around for estate lawyers, to ensure you're getting the best value for money.
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 aGrant 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 administer the estate- carrying out distribution of all the assets the deceased left. This 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.
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. This can detract from assets in the estate plan, and undermine the powers of the executor, to carry through the wishes of the will maker in full.
To keep costs down without compromising on quality or service, law firms likeSafewill 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:
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.
Learn more about the Probate process with our affiliate firm Safewill Legal or call the Safewill Legal team on 1300 942 586.
Apply for Probate with Safewill Legal and simplify your journey as an executor. Grants issued by Safewill are the most affordable probate service in Australia, with unmatched flexibility and compassionate support at each step of the way.
We even offer the most affordable, flexible and easy way for any will maker to obtain a valid will in life- ultimately minimising the costs, time and stress of the future probate process.
Regardless of your circumstances, writing your will protects your family- both against the uncertainty of what will happen in the future, and the certainty of the probate process they'll inevitably have to go through. You can even set up your testamentary trust, assign legal guardians and create further clear instructions to minimise family disputes.
And, with Safewill, your will can be held as an electronic document so its important instructions are never lost.
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