What is Probate?

Information verified correct on October 28th, 2016

When is Probate Needed and What are the Requirements?

Many of you may have heard the term ‘Probate’ in relation to a person’s will and the distribution of assets under their will. However, this legal term can often be quite confusing as there are various considerations that are possible under Probate and depend on the terms and conditions of a Will. This article focuses on the term ‘Probate’ and aims to understand exactly what it is.

Understanding Probate

Contrary to what most people believe, Probate is not a document that is required to execute the Will of a deceased person, but is rather the process of proving that the deceased person has left behind a Will and that it is the last known Will of that person.

When any person is planning their estate, they usually create a Will in which they mention all their wishes as to the distribution of their property and assets upon their death. Whether they want to leave all their assets to their legal heirs, or they wish to leave their assets to a trust or another individual – all this is specified in the will. Once the Will is prepared, the person may also appoint another person as executor of their will. Hence, when this person dies leaving behind a Will and an executor, it then becomes the responsibility of the executor to carry out the distribution of assets as mentioned in the Will.

However, banks and other institutions may not accept that the Will is authentic or that the executor has in fact been named as such. In such situations, it is necessary to have proof that the Will is the last known Will of the deceased and that the executor has also been named. This proof is obtained from the Supreme Court by applying to the probate office for a document known as the Grant of Probate. When the Australian Supreme Court receives an application for such a document, the will of the deceased is checked and if it is found to be legal and valid, the Supreme Court then gives the Grant of Probate to the executor of the will, naming him as the legal authority to carry out the disposal of assets as specified in the will.

This entire process of determining the validity and authenticity of a particular will and granting authority to an executor is known as Probate. Once a will has been probated by the Supreme Court, the executor of the will then has the necessary legal authority to carry out the demands of the will. It is important to note that Probate can only be carried out when a person has died leaving behind a Will as well as naming an Executor. If a person dies without leaving a formal will or without naming an executor, then probate cannot be granted. In such circumstances, the Supreme Court typically grants a Letter of Administration to an appropriate person, thereby giving that person the legal authority to take care of the deceased person’s estate. Letters of administration may be given to a person who is a beneficiary of the dead person’s estate, but not necessarily so. This depends on the sole discretion of the Supreme Court.

When is Probate Required?

The executor of a will may have to go through the process of probate if certain assets of the deceased are not automatically transferred to the heirs or to the executor named for the purpose. For example, if a bank holds some assets of the deceased, the bank may not want to release these assets to any person without sufficient proof. In such situations, the executor of the will has to apply for a grant of probate. Once the grant of probate has been sanctioned, they can show the document to the bank, which will then release the deceased person’s assets to the legal executor as mentioned in the grant of probate.

From the above, it can be said that probate is necessary if any one of the following conditions are true:

If the deceased person has any kind of physical or non-physical assets that are held individually in their name only. This may include bank accounts, shares, or property.

If the deceased person owned any property as a tenant along with someone else.

In both these circumstances, the assets may not automatically pass to someone else as they were owned individually. Hence, probate will usually be required in such situations.

However, probate may not be required if any of the following conditions exist:

  • All the assets of the dead person were personal possessions.
  • If the deceased person owned any property jointly with their partner or spouse.
  • If the deceased person owned any non-physical assets such as bank accounts jointly with another person.

In any of the above situations, the assets can be automatically transferred to the joint owner upon one owner’s death. Hence, if a property is held jointly, then the title of that property will pass to the surviving owner. Similarly, if two people hold a joint bank account and one person dies, then the balance in the account can be transferred to the joint owner upon submission of a death certificate. Thus, in situations where assets can be transferred with the help of the death certificate itself, it may not be necessary to go through the process of probate.

Important Documents Required for Probate

If probate is unavoidable, here are some of the important documents that will be needed to file a valid application with the probate office of the Supreme Court.

  • The original will: If the original is not available, the court may grant probate on a photocopy of the will. This has to be the last known will of the deceased.
  • Original death certificate: The original death certificate of the person who has died.
  • The probate application: The application should be complete in all respects and signed properly. It is best to take the assistance of a lawyer when preparing a probate application as it can be quite a confusing document to fill properly.
  • Affidavit: The executor of the will has to submit a legal and signed affidavit in support of the application of probate.
  • Lodgement fee: This is the fee that has to be paid to the probate office of the Supreme Court.

Once a probate application has been filed properly and grant of probate has been received, the executor can then sell off the assets of the deceased to pay off the liabilities of the estate and distribute the remaining assets to the beneficiaries.

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