When a loved one passes, you can find yourself needing to deal with the issue of probate without having much of an idea as to what probate actually is.
If you’re wondering, ‘What is the meaning of probate?’ .. ‘How do I apply for probate?’ .. or even ‘How long does probate take?’… this article has the answers. Keep reading to find information on:
In simple terms, a will is a legal document that sets out how a person’s money and assets should be distributed following their death. A codicil is a document that amends a previously executed will. For information about making an online will, see Make an Online Will – Get Started.
When a person dies and leaves a will, it is the job of the executor appointed in the deceased’s will to implement the terms of the will and administer the deceased’s estate. This usually involves collecting together the assets the deceased owned, paying off any debts they may have had, and distributing any remaining assets in accordance with the terms of their will.
If necessary, it is also the executor’s role as part of this process to apply for probate.
For more information about the executor’s role, see Duties of the Executor of a Will.
While many people are familiar with the concept of a will, and the idea that it provides instructions following a person’s death, the question ‘What does ‘probate’ mean?” commonly arises.
Probate is often an essential part of the process of administering a will. Probate is the legal process of proving a deceased person’s will in the Supreme Court. It is an official recognition by the Supreme Court that:
Whether probate is needed often depends on the assets of the deceased estate. Probate may not be required if the deceased had minimal assets, or held property as a joint tenant (which will transfer by way of survivorship). However, estate assets held by institutions – such as money held in a bank, or shares held by a company – are likely to require probate so that the relevant institution has proof of the executor’s entitlement to collect the deceased’s assets. Likewise, transfer of real estate will usually require probate.
If you are collecting estate assets, it is a good idea to check with an asset holder as to whether they are willing to transfer the relevant asset without probate. If not, you will need to apply for a grant of probate.
To get a grant of probate, the executor of the will should apply to the Supreme Court in their state. The executor may either:
Note that a Supreme Court will only grant probate in relation to assets located in the Court’s state.
This article provides a summary of the process to be undertaken when making a personal application. Remember that preparing an application for probate can be complicated and time-consuming. Certain parts of the process may prove difficult for a person without legal experience; for example, responding to requisitions/requests for further information. If you are considering applying for a grant of probate, it is important to review the information on the relevant Supreme Court website and/or seek legal advice.
In New South Wales, an application for probate should:
For a more detailed discussion of the NSW probate process, see:
In Victoria, an application for probate should:
For a more detailed discussion of the Victoria probate process, see:
In Queensland, an application for probate should:
For a more detailed discussion of the Queensland probate process, see:
In South Australia, an application for probate should:
For a more detailed discussion of the South Australia probate process, see:
In Western Australia, an application for probate should:
For a more detailed discussion of the Western Australia probate process, see:
The cost of a grant of probate varies from state to state and can be affected by the value of the estate. In addition to advertising and filing fees, you may incur costs relating to:
You should consult the Supreme Court website in your state for further information.
The average processing times for a grant of probate in each state are discussed above. However, you should remember that these times do not account for particularly difficult applications, or requisitions from the registrar which require you to provide additional information before the application can be processed.
Complications which can cause a grant of probate to be delayed include:
Even in the absence of additional complications, the process of granting probate can take some time. Keep in mind that in some states, it is necessary to advertise a notice of intention to apply for probate for a period of 2 weeks and, even in states without this requirement, you may have to wait at least 14 days from the date of the deceased’s death before commencing the application process. It can then be a number of weeks, or months, from the date of filing before the registrar makes the grant.
It’s likely that the deceased’s funeral will take place before a grant of probate – and therefore access to estate funds – occurs. If you’re responsible for paying for a funeral and are looking to access funds while waiting for a grant of probate, you may be interested in Gathered Here’s buy now pay later funeral purchase option. Through our partnership with zipMoney, you can purchase a funeral from selected funeral directors and pay nothing up front, with 3 months to pay off the loan, interest and fee-free.
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We hope this guide has answered your queries as to What is Probate? For further discussion about probate and estate administration, see our Probate FAQs.
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