Probate Made Simple

Probate is a legal document issued by the Court affirming that the Will of a deceased person has been verified and registered in the Court and that the executor named in the Will has been given the authority to administer the estate. Once the Will is verified by the Court, the Executor can administer the deceased’s estate by collecting the deceased’s assets, paying off any debts of the deceased, and ensuring that the remaining assets are distributed to the beneficiaries of the estate in accordance with the deceased’s wishes.

Whether probate is necessary will depend on the type, size and value of the assets comprising the deceased’s estate.

Probate will be necessary when the deceased leaves behind specific types of assets. For example, probate will be necessary to deal with real estate, money in bank accounts and shares solely owned by the deceased or joint owned by the deceased with another person as tenants in common.

If assets of the deceased are jointly owned as joint tenants, then on the death of one of the joint owners, the asset will automatically pass to the surviving owner. In such cases, there will be no need to apply for a Grant of Probate.

Some third parties will release an asset without the need for Probate. For example, some financial institutions may release without seeing a Grant of Probate if the amount held in the name of the deceased is minimal and there is no dispute between the deceased’s relatives.

To apply for probate, a person must:

• over 18 years of age; and
• be the executor named in the Will.

Yes, you will need a copy of the original Will to apply for Probate.

If the individual passed away without a Will (intestate), did not name an executor in a valid will or the Executor is unwilling or unable to act, the deceased’s closest next of kin (eg spouse or de facto spouse) will need to apply for Letters of Administration.

Letters of Administration is a court order made by the Court which allows the Administrator (the person who is appointed by the court) to distribute the assets of the deceased who died without a valid will.

If the deceased individual dies intestate, the law in the state or territory in which the deceased died and owned assets, will determine who receives the assets of the deceased’s estate. This is known as the 'rules of intestacy'.

The process of applying for Letters of Administration is more complicated than applying for a Grant of Probate as involves some extra steps. For example, the spouse or de facto spouse will need to file an Affidavit detailing the efforts they made to locate the deceased’s Will.

Willed prides itself on price transparency. In this regard, Willed offer upfront fixed prices for a grant of probate. Our upfront fixed prices assume that the will is valid and uncontested and that the executor has all the necessary documentation to apply for a grant of probate. If this is not the case, additional fees may apply. Our fixed prices do not include court filing fees (which will depend on the value of the deceased estate) and disbursements. Contact us today to request a fixed price for a grant of probate.

In Victoria, New South Wales, Australian Capital Territory and Western Australia - an application for Grant of Probate must be made within six months of the death of the willmaker. In Queensland, there is no strict timeframe within which you must apply for probate but the court expects you to act swiftly and efficiently when applying for a Grant of Probate. In Tasmania, an application for Grant of Probate must be made within two years of the death of the willmaker.

If no probate application is made within these timeframes:

• you will need to provide an explanation to the Court for the delay.
• there is underlying risk that a creditor or other person may apply to have themselves appointed as executor of the estate in place of the executor named in the will.

The first step in applying for a Grant of Probate is to lodge notice of intention (advertisement) for a Grant of Probate with the Court. The advertisement must be published for at least 14 days before you can file an application for a Grant of Probate.

After the application for a Grant of Probate has been filed with the Court, it will take approximately 8 weeks to obtain a Grant of Probate (depending on the Courts backlog of applications and whether any requisitions are received from the Court).