The Ultimate Guide
Probate of a Will in Australia is a legal process where the Supreme Court certifies that:
- A person has passed away (the deceased)
- The deceased left a valid Will
- The executor(s) named in the Will have the authority to administer and finalise the deceased’s estate
The executors apply for Probate of the Will by submitting an application to the Supreme Court in the State or Territory where the majority of the deceased person’s assets are held. The purpose of the application is to prove that the deceased person left a valid Will and to identify the assets and liabilities in their estate.
A deceased person’s estate consists of the property, assets and debt they have left behind. The beneficiaries named in the Will are entitled to the net estate and it is the executors’ job to ensure they receive their inheritance in a timely manner – usually within 12 months. This is known as estate administration and is the next step for executors after Probate of the Will has been granted.
Please Note: Where a person dies without a Will, the laws of intestacy determine who is entitled to their estate. The closest living next of kin can apply for Letters of Administration to deal with the estate, which involves distributing the net assets according to relevant state law.
Learn more about the ‘Next of Kin’ and Letters of Administration here:
What is a Grant of Probate?
A Grant of Probate is a legal document issued to the executors of a valid Will by the Supreme Court once their application for Probate is approved.
A Grant of Probate is proof of the following:
- The named person has died (the deceased)
- The deceased left a valid Will
- The executors named in the Grant of Probate have the authority to access, manage and finalise the deceased’s estate
A useful analogy is that a Grant of Probate is like the key to a deceased person’s estate. It allows the executors to access, manage and distribute their property and assets. This important legal document proves to asset holders and institutions like the ATO that the executors have the authority to finalise the affairs of the deceased. Whilst this authority ultimately comes from the Will itself, the Grant of Probate issued by the Supreme Court certifies that the Will is a valid document and must be administered according to the terms outlined.
When is Probate required in Australia?
Probate is only required in Australia when the executors are asked to produce evidence of their legal authority to deal with the property, assets and affairs of a deceased person. Asset holders such as Banks, Aged Care facilities and Share Registries will often ask to see a Grant of Probate before providing access to the deceased person’s assets. Sometimes Probate is not required, and certified copies of the Death Certificate and Will suffice. It all depends upon the type of assets, their value and the policies of the institutions holding or managing them.
You need a Grant of Probate in the following situations:
Probate is also necessary to perform other duties in relation to finalising a deceased person’s estate, including making contact with the ATO regarding tax returns or dealing with liabilities such as mortgages.
How to apply for Probate of a Will in Australia?
Applying for Probate of a Will is an important first step for many executors who are dealing with the loss of a loved one. Determining how to apply is crucial, especially when there are multiple executors.
There are four main ways to apply for a Grant of Probate:
- Prepare the application yourself.
- Engage Probate Consultants to assist with your application.
- Instruct a lawyer to act on your behalf.
- Authorise a Trustee Company to act as the executor.
There are pros and cons to each option and finding the best way to apply is an important decision for executors.
Probate Consultants is Australia’s highest rated Probate service with the lowest Fixed Fee and fastest approval times – Guaranteed. Probate Lawyers are great for complex applications that require legal advice – but most people don’t need that. We built our service to expertly focus on straightforward applications for Probate and operating as a consultancy allows us to cut through much of the red tape, policies and procedures that come with running a legal practice. The result is a streamline application process that makes Probate easy.
Read more about our innovate and highly rated service here:
Why choose Probate Consultants instead of Probate Lawyers?
What do I need to apply for Probate of a Will?
Generally speaking, you need the following to apply for Probate in Australia:
- Original Will
- Death Certificate
- Documents and information regarding the deceased’s estate
- Property & Assets
- Debts & Liabilities
The Supreme Court in every State and Territory has its own specific process for how an application for Probate is made and what is required. In some states like Victoria and South Australia, the application is made online through an electronic platform, whilst in others the application documents are physically lodged with the Court in person or by post.
It is important for executors to know which State or Territory they need to apply in and what is required in that jurisdiction.
Read about what you need to apply for Probate of a Will in your State or Territory below:
- New South Wales
- Western Australia
- South Australia
- Australian Capital Territory
- Northern Territory
Please Note: Where a deceased person has assets in multiple States or Territories, executors may need to have a Grant of Probate issued in one State or Territory resealed in another. An application for reseal is made to the Supreme Court in the relevant jurisdiction. A reseal is always required where real estate is owned in different States or Territories.
If you need information about where to apply for Probate or what is required in that State or Territory, contact us today on 1300 561 803 for a Free Consultation.
Probate of a Will – Summary
Probate of a Will in Australia is an important legal process where the Supreme Court certifies that a deceased person has left a valid Will and the executors have the authority to manage and finalise their estate.
Whilst not a legal requirement, many executors will need to apply for Probate before they can access and deal with the deceased’s property and assets. This is because asset holders and institutions often require proof that a Will is valid and the executors have the authority to administer it. The Grant of Probate issued by the Supreme Court after a successful Probate application provides this proof and allows executors to begin the estate administration.
Applying for Probate is an important first step for executors and choosing how to apply is key. Whilst lawyers are a great option for complex applications that require legal advice, most applications are straightforward, and executors are turning to alternative solutions like Probate Consultants that offer the same outcome for less.
Probate Consultants is Australia’s #1 Probate service. With over 160 five-star reviews, we consistently deliver on our values of making Probate fast, affordable and easy. Get in touch for a Free Consultation today. We are here to help in any way we can.