Dealing with the loss of a partner is an incredibly difficult experience. With all the grief and the rollercoaster of emotions comes a ton of paperwork – including the process of applying for probate, if needed. But how do you know if probate is necessary? In this guide, we’ll uncomplicate the (seemingly complicated) process.
But first, a quick probate refresher:
What is probate?
Probate (aka a grant of probate or a grant of representation) is a process that is sometimes required to verify that the deceased’s Will is all in order. It allows the executor to be appointed, who will then distribute the estate. Remember that each Australian state and territory does probate slightly differently, so be sure to check those requirements with your local Supreme Court, or with a pro (hey, that’s us!) You can also find some guides way down below for appropriate state and territory info. Check ‘em out here.
When is probate not needed?
While probate is typically required when administering an estate, certain situations may render it unnecessary – even if you are married or in a de facto partnership or civil union. Here are some examples:
If you’re the joint owner of a property or bank/savings account, then probate is unlikely to be required. This is because joint assets automatically pass to the surviving owner, so they don’t really form part of the deceased estate. However, probate may be necessary if there are other assets in the estate worth over a certain amount that were solely owned by the deceased. This includes things like:
- Other bank accounts
- Stocks and shares
… and more.
Wondering what that amount is? Well, it’s tricky to say exactly. For example, each bank has a different threshold for when they require a grant of probate in order to release the funds. So, if you find yourself in this situation, the best thing to do is contact the bank (or relevant institution holding the asset) and ask.
Civil or de facto partnerships
Like married partners, civil partners don’t need to apply for probate concerning jointly owned assets like property, bank accounts, etc. However, if there are also solely-owned assets in the estate, then probate may be required.
In Victoria, for example, if a partner dies and there is no Will, this means they have died intestate. The Rules of Intestacy vary between each Australian state and territories, but it essentially refers to a formula that determines how the estate will be divided up amongst the deceased’s next of kin (this could be a partner, dependants, parents, siblings etc).
In this case, probate isn’t necessary… but you may need to apply for Letters of Administration to deal with the estate left behind. And yes – here at Willed, we can certainly help you get that ball rolling.
Other circumstances may render probate unnecessary. If you’ve got questions, our in-house lawyers are ready to fast-track the process for you.
Joint tenants or tenants-in-common
If you own a property as tenants in common, each tenant owns a percentage of the property. So, if one tenant dies, their share makes up part of their estate. With tenants in common, a grant of probate is needed (or a grant of letters of administration where there is no Will) – to transfer or sell the deceased’s share of the property.
Joint tenants, on the other hand, sing a different tune. It means that if one tenant passes away, the surviving tenant automatically takes sole ownership of the property. This is the most common type of ownership for couples who are married or in a civil partnership because it means the other partner is secure if one passes away. In this case, there would be no need for a grant of probate.
It’s important to note that the probate process varies across each Australian state and territory, so always be sure to check with your local Supreme Court, or seek help from the pros. If you can’t quite get your head around the process, don’t be too hard on yourself. It’s tricky enough to navigate your grief, let alone deal with all this never-ending paperwork that piles up along the way. Remember that support is always available. You’re never alone!
Here at Willed, we put the ‘Pro’ in Probate … (as in, we handle thousands of probate files each year). If you’re looking for some expert help to do with all things Probate and Letters of Administration (or you’re just plain overwhelmed), contact our friendly team today.
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.