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

What is the meaning and definition of Probate?

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 the meaning of Probate?

Applying for (or “filing for”) Probate involves making an application to the court to approve your Will and give your Executor (the person you named to manage your Estate) the authority to start carrying out the instructions in your Will on behalf of the Beneficiaries.

If a person dies without a Will (known as “dying Intestate”) or without an Executor, an Administrator will be appointed by the court via a similar process to Probate. In this case, the document approved by the Court will grant 'Letters of Administration' instead of 'Probate', and the Administrator will often be a close relative or another person who was well known to the Will maker.

In Australia there is a Probate Registry in each state and territory that handles Probate applications.

How do you make a Probate application?

An application for Probate most commonly involves the following steps:

1. 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).
   
   
2. 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.
   
   
3. When the application has been approved, the courts issue 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 - like 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 needed to be done to distribute assets 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 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 between $100,000 and $250,000) to around $6,000 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 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 obviously be added for their time spent dealing with the matter.

How long does Probate take?

There are several stages to the Probate process, each with their own timeframe:

• Notification period. The legal notice published by the court about the intention to apply for Probate lasts for 14 days so that Probate searches, claims and objections can be made. It also gives time for any contesting parties to come forward.

• Application for a Grant of Probate. After that, assuming all the necessary documentation has been submitted, a Grant of Probate is usually issued without delay in about 10 working days.

• Administration of the Estate. The time frame for dealing with the Estate and distributing assets will depend on its size and complexity 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 how to start on your Estate planning journey with Safewill.