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 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:
- the will and the executor;
- what probate is;
- whether you need a grant of probate;
- how to apply for probate;
- the cost of probate; and
- how long probate takes.
The will and the executor
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.
What is probate?
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 is a grant of probate?” 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:
- the will in question is the final will made by the deceased; and
- the person/s named in the will as the executor/s is entitled to collect and distribute the assets in the deceased’s estate. A grant of probate enables an executor to require people or institutions that hold assets of the estate to transfer those assets to the executor.
Do I need a grant of probate?
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.
Applying for 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:
- instruct a solicitor to act on their behalf;
- nominate a trustee company (e.g. the Public Trustee) to act as executor of the deceased estate; or
- make the application personally (i.e. do it themselves).
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.
New South Wales
In New South Wales, an application for probate should be filed within 6 months of the date of the deceased’s death. To apply, you must be over 18 years and named as an executor in the will.
The first step is to publish a notice of your intention to apply for probate on the NSW Online Registry. This allows the deceased’s creditors to make a claim on the estate, and also provides an opportunity for other interested parties to file an objection if they believe they have a claim to the estate. At the time of writing, the fee for advertising was $45.
You must then wait at least 14 days, after which you can file your application, together with the required documents, at the Supreme Court of NSW Registry. Required documents include:
- Summons for Probate;
- Affidavit of Executor;
- original Will (and any Codicils);
- original Death Certificate;
- Inventory of Property;
- 2 copies of the Grant of Probate.
The application can be filed in person or by post. A filing fee will be payable where the gross value of the New South Wales estate is over $100,000. At the time of writing, the filing fee ranged from $0 – $5,646.
The application will be considered by the registrar, with the aim of processing it within 5 days.
You can find more information, including forms for application, on the Supreme Court of NSW website.
The process for applying for probate in Victoria is similar to that in NSW.
A notice of intended application must be lodged. At the time of writing, the lodgement fee was $45.50, to be paid online with a credit card.
An application for probate in Victoria must be filed in person at the Probate Office. Documents required include:
- Originating Motion for a Grant of Probate;
- Affidavit of Executor;
- certified copy of Death Certificate;
- original Will (and any Codicils);
- Inventory of Assets and Liabilities;
- Affidavit of Publication of Notice and Searches;
- Order of the Registrar;
At the time of writing, the filing fee in relation to a deceased estate with a gross value of over $1,000 was $320.
The grant of probate will usually be posted to the applicant after 5-10 business days.
You can find more information, including forms for application, on the Supreme Court of Victoria website.
The process for applying for probate in Queensland is similar to that in NSW and Victoria.
First, a notice of intention to apply for a grant of probate must be published in the Queensland Law Reporter. You must also give a copy of the notice to the Public Trustee. At the time of writing, the fee for advertising in the Queensland Law Reporter was $161.70.
You must then wait 14 days after the notice is published, and 7 days after the Public Trustee receives the notice, before filing the application, together with supporting documentation, at the Supreme Court of Queensland. Required documents include:
- Application for Probate;
- original Will (and any Codicils) and one photocopy;
- Affidavit in Support exhibiting a copy of the Will and the original Death Certificate;
- Affidavit of Publication and Service, exhibiting the Notice of Intention to Apply for a Grant;
- Certificate of Exhibit for each exhibit.
The application can be filed in person or by post. At the time of writing, the fee for filing an application for probate was $682.80.
Grants of probate are issued in approximately 3 weeks.
You can find more information, including forms for application, on the Supreme Court of Queensland website.
In South Australia, there is no requirement to advertise a notice of intention to apply for a grant of probate.
Rather, applicants seeking probate must attend the Probate Registry between 9.30-10.30am on a business day to file their application. Required documents include:
- Draft Grant;
- Executor’s Oath;
- Affidavit of Assets and Liabilities together with Statement of Assets and Liabilities;
- Certificate of Disclosure;
- original Will;
- original Death Certificate.
The filing fee will depend on the gross value of the deceased estate. At the time of writing, the fee ranged between $780 – $3,118.
The grant will be posted to the applicant.
You can find more information, including forms for application, on the Courts Administration Authority of South Australia website.
Like South Australia, there is no requirement in Western Australia to advertise a notice to apply for a grant of probate.
An application for probate can be filed 14 days from the date of the deceased’s death. Required documents include:
- Motion for a Grant of Probate;
- Affidavit of Executor with Statement of Assets and Liabilities;
- Original Will (and any Codicils);
- original Death Certificate and a copy.
The application should be filed at the Supreme Court Registry in person or by post. At the time of writing, the filing fee was $344.
The grant of probate can take approximately 8 weeks.
You can find more information, including forms for application, on the Supreme Court of Western Australia website.
Cost of probate
The cost of a grant of probate varies from state to state and, as discussed above, can be affected by the value of the estate. In addition to advertising and filing fees, you may incur costs relating to:
- document preparation;
- acquiring the original Death Certificate;
- postage of the application; and/or
- solicitor’s fees (if you engage a solicitor).
You should consult the Supreme Court website in your state for further information.
How long does probate take?
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:
- issues surrounding the Will, such as a question as to the particular document that comprises the final Will, or errors on the Will; and
- filing of a caveat by a party claiming to have an interest in the estate, which can pause the grant of probate until the claim is resolved.
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.
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