When is Probate Needed?

Why probate matters for a deceased estate?

Probate is the process of confirming that a Will is valid. Before the deceased person's remaining assets can be distributed by the executor of the estate, a probate grant must be approved by the Supreme Court.

This court process is designed to protect the legal rights of the deceased person, as well as their family and next of kin. Ensuring a Will is legally valid can protect against undue influence on the deceased person, as well provide authority to the executor to handle the estate.

What happens in probate?

Most deceased Estates in Australia go through the process of Probate. It requires the court in each state to be provided with a copy of the Will and information about the Will maker's assets and liabilities, the witnesses to the Will and the identity of the Executor and Beneficiaries.

Once the supreme court is satisfied, a Grant of Probate is made and the Executor has the official “go ahead” to start distributing assets to the Beneficiaries of a Will.

Institutions like banks, insurance companies, share registries and retirement homes will often refuse to transfer assets, money, shares, payouts and bonds until they're clear as to who has the legal authority to deal with the assets. They will also likely refuse access to bank accounts and other estate's assets without evidence of a Grant of Probate.

Note that the way each financial institution deals with a deceased Estate often differs, so you can consult with each one on a case-by-case basis to find out what rules they apply and if there are any exceptions.

When is Probate required by the Supreme Court?

Obtaining a Grant of Probate is necessary if the Will maker held assets in his or her name only or as tenants-in-common (meaning that they held the assets with another person but each had separate shares).

When is Probate not required?

The exceptions are usually as follows:

• Wills with assets that are mostly jointly owned.
  
  When the main asset of a deceased person's Will is real estate which is owned by two or more people as “joint tenants” - a common case being family homes - the surviving tenant/s will automatically be entitled to the property under the law and Probate may not be required.

• Where the deceased person has minimal assets.
  
  There's no certain amount in a deceased estate which determines whether or not probate is needed. But, in the case of small estates with no major property or minimal assets, the asset holders might agree to release payment without requiring a Grant of Probate. But it is best to check with the relevant institutions, as it may be different on a case-by-case basis.

• Probate is also not granted when a person dies “intestate” and there is no Will.
  
  In this case, Letters of Administration are usually given to someone who is the closest next of kin and gives them authority to administer the Estate.

How do you check Probate for a deceased person?

After a person dies, the Executor of their Will files an application for Probate to the supreme court. This is required so that they can begin estate administration, and make distributions for the deceased estates.

Wills going through Probate become a public legal document, and legal notices are published during this time to give people a chance to review, make a claim or challenge the Will.

If you have reason to believe you are included, or have a right to be included in a Will, you can apply to look at it.

How long does probate take?

The Probate process involves several steps, each with its own time frame.

There is a 14-day notification period where searches, claims and objections can be made on deceased estates. After this, a formal application is made.

Typically, the Grant of Probate is issued within 5-10 working days (depending on the state or territory) after all the necessary documentation is submitted by a legal personal representative.

After a Grant of Probate is made the amount of time it takes to distribute assets and funds will depend on a few factors. The size of the Estate, how complex the affairs of the Will maker are and whether the Executor has the help of a legal advisor all factor into it.

You can read more about Probate processes and timeframes in this guide.

How Safewill Can Help

Apply for Probate with Safewill Legal & simplify your administration journey as an executor.

As a will-writer, it's also a good idea to seek advice from a legal practitioner on how you can ensure your Will is legally valid, and help ease the probate process for executors named in the document, and beneficiaries set to inherit from your estate.

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