What is probate?
In the unfortunate event of someone close to you passing away, there are a handful of things that need to be done in order to allow the deceased's wishes to be carried out correctly.
Even if the person who passed away had a Will set up, things may not be as simple as just following the instructions on the Will. If they had any significant property that they were the sole owner of, a process called probate may need to be followed.
It's essentially a court order that says the Will is valid and needs to be executed. The probate (also called grant of probate) process can vary by state and relevant guides to each state can be found at the bottom of this article.
Is Probate Necessary for Me?
You may be wondering if probate is necessary for you in your current situation, as it is not always crystal clear.
Usually, if assets were owned only by the deceased person (not a jointly owned asset such as a joint bank account or house), the financial institution may require a grant of probate before they release the assets to be distributed according to the Will.
If the assets were jointly owned or had another person's name as an owner as well, probate is usually not required, and the assets can be transferred to the 2nd owner.
Who Applies for Probate?
The executor of the will is the person who will need to apply for a grant of probate from the Supreme Court. Is it typically best practice to have a lawyer help with the application of probate as the application can be a bit complicated.
How Do I Apply for Probate?
If you are the executor of a Will and have determined that you need to apply for probate, exactly how to do it will depend on what state you are in.
New South Wales
If you are in NSW, you first will need to publish an online notice of your intention to apply for a grant of probate. After waiting a minimum of 14 days, you can file your summons for probate. Once you file your summons, you will be assigned a case number that should be used for future matters related to your case.
In order to apply for probate in Queensland, you must advertise your intention to apply for probate in order to give others the opportunity to disagree with your right to obtain probate. You must also file several legal documents with the Supreme Court. It is recommended to have a lawyer assist you or hire the Public Trustee of Queensland for help.
The state of Victoria requires you to advertise your intention to apply for probate at least 14 days before your filing is made. You will also need to complete the required documents related to your filing and bring them to the probate office to hand in. Forms are not accepted with electronic submission.
To apply for a grant of probate in South Australia you will need several documents:
- The original Will
- Death Certificate
- Details of assets and liabilities of the deceased person
- Credit card to pay the lodgement fee
With the required documents in hand, you will then need to complete the application on the CourtSA website. After your application is complete and your fees are paid, you will be notified when the Grant has been issued.
In Northern Australia, you will need to apply for a grant or probate, either on your own or with the assistance of a lawyer. You can obtain a probate kit online that will help you through official websites application process.
The Supreme Court of Western Australia has an online portal which you are able to prepare your application on. After submitting your application, expect it to take 3-6 weeks for processing. If more information is needed, the Supreme Court will reach out to you with the specific questions related to your application.
Australian Capital Territory
There's a checklist for all the things you need to apply for probate that can be found in the link below.
While the probate process can be complex, it is necessary to ensure the Will of your deceased loved one is carried out properly so don't put it off!
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