When someone close to you passes in Australia, there are several things you need to for you to carry out the wishes of their Will and handle their finances.
In today’s guide, we discuss what does probate mean in Australia, when is probate necessary, who applies for probate and how to apply for probate across states and territories in Australia.
What does probate mean?
Probate is a legal process to validate the Will of a person who has passed. When you receive a grant of probate, the court legally recognises the validity of the Will and the executor who’s responsible for the estate and its assets.
When is probate necessary?
Probate may be required if the person who passes leaves behind certain kinds of assets. For example, if there is money in a bank account and the person was the sole account holder, the bank may ask for a grant of probate before releasing the funds to the named Executor.
A grant of probate is only required for funds if the value is above a certain amount. Every financial institution will likely have policies around deceased estates and their handling, so it’s best to inquire based on your circumstance.
Other scenarios where probate might be necessary includes:
- If the person passed has many shares with a company, they might require a grant of probate.
- If the person who passed was the sole owner of real estate, a grant of probate might be necessary to transfer ownership. If there are two owners, then the ownership is transferred to the second person.
It’s worth noting that every state and territory have different policies around probate, so it’s best to check with your local Supreme court.
Do you need a grant of probate to access a super fund or life insurance?
Like bank accounts and shares, you might need a grant of probate to access the funds in a super account or make a life insurance claim. Life insurance isn’t usually a part of a person’s estate, and there are generally specific instructions around who will receive the benefit.
Depending on the insurer or the superannuation fund, more straightforward documents are enough for the person making a claim or trying to access the account. These documents can include a death certificate, birth certificate, and medicare records.
Who needs to apply for probate?
In most situations where probate is necessary, the named executor is the one who applies for probate. While most people think you need to engage a lawyer for the process, it’s not required, and there are excellent services that can help you with the process of applying for probate.
At Willed, we start with a free phone conversation to understand your situation. Then we will work with you to advertise your intent to apply and complete the application in your designated state, followed by helping you sign and lodge your application.
How do I apply for probate?
Understanding how to apply for a grant of probate is different across Australia. It’s always worth checking with your local court or seeking legal advice if you’re unsure.
In the meantime, we’ve provided a few notes on things you should know when applying for probate in different states and territories in Australia.
Applying for probate in New South Wales
- You will first need to publish an online notice of your intention to apply for a grant of probate on the New South Wales online registry.
- You then need to wait a minimum of 14 days before you can file your probate application.
- Once you file your application, you will be assigned a case number that references future matters related to your case.
Applying for probate in Queensland
- There are five basic steps when applying for probate in Queensland.
- You’ll start by advertising your intention to apply, then give a copy to the public trustee.
- You then must wait 14 days after your notice appears for people to object.
- If there are no objections, you can prepare the documents for your application.
Applying for probate in Victoria
- The application for probate in Victoria requires you to advertise your intention to apply as the first step.
- From there, you’ll complete your application and upload your documents.
- Solicitors file 95% of applications, but the local Supreme Court advises that you can apply on your own.
Applying for probate in Tasmania
- The Supreme Court of Tasmania has exclusive jurisdiction in Tasmania to make orders about the validity of a Will, the appointment of an Executor or an Administrator and the administration of deceased estates.
Applying for probate in South Australia
- Start by collecting all necessary documents and prepare all necessary additional documents.
- Register and log in to CourtSA to complete the grant application form.
- Lodge your application and pay the fee.
Applying for probate in Western Australia
- You may not need a grant of probate in WA if the person who passed owned property as a joint tenant with another person.
- If the person had a joint bank account with someone else, if their possessions were personal, or if the only property left was a car or a motorbike.
Applying for probate in ACT
- Documents that need to filed include application, affidavit of the applicant for probate and affidavit for a search.
- You must publish your notice of intention to apply for probate in a daily newspaper circulating in the ACT.
- The notice can’t be less than 14 days and not more than three months before applying to court.
Applying for probate in Northern Territory
- Family trusts or protected persons complicate the estate. They advise engaging a solicitor or apply to the Court to have the Public Trustee appointed to exercise those powers and duties.
Understanding what Probate means in Australia will help you properly handle the assets of a Will should someone close to you pass and your name the Executor. Another thing to note is that if the person who passes has assets in multiple states across Australia or more than one country, a reseal of probate is required.
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.