What is probate?

Probate is the legal process that proves the validity of a will.

If a person dies and has left behind assets, all of these assets (including real estate and personal property) are deemed to immediately be vested in the state Trustee, in accordance with the relevant state legislation. In order for the Executor or Administrator to take control of these assets and begin distributing them to the beneficiaries, the Executor must apply to the Supreme Court for a ‘Grant of Probate’ on the deceased’s last will. You can read more about probate in our comprehensive list of frequently asked questions.

What does a ‘Grant of Probate’ mean?

Probate is granted by the court. This means the court is satisfied that the will is valid. Once probate has been granted the person who has been named in the will as it’s executor may begin finalising the deceased’s affairs and administer the Estate by collecting funds, selling assets and distributing the Estate to the beneficiaries in accordance with the wishes outlined by the deceased in their will. At this point, full control of the assets will have shifted from the Trustee to the Executor.

Generally once the Executor has received a Grant of Probate, the asset holders (banks, share registry, department of lands, etc) release and transfer the deceased’s assets into the Executor’s name.

1. What are ‘Letters of Administration’?

In cases where there is no Executor appointed or there is no Will, an Administrator of the Will is appointed. When there is an Administrator, instead of a Grant of Probate, the grant by the court is called ‘Letters of Administration’. Both the Grant of Probate and Letters of Administration are referred to collectively as ‘Grants’.

2. How do you make an application for a Grant of Probate?

The application that a person submits in order to receive a Grant of Probate must be in the prescribed form. It must also satisfy the Supreme Court that the legislation has been complied with.

Applying for a Grant of Probate can be a smooth and pain-free process if you have an experienced Probate Lawyer behind you. We can help you ensure your Grant of Probate is approved as efficiently as possible by ensuring all the necessary documents are in place.

To discuss what is involved in applying for a Grant of Probate please call our Contested Wills & Estates Team or send us a message using the form on the bottom of this page.

3. Do I really need to go through Probate?

Not necessarily. There is no statutory requirement that a grant of Probate be obtained in every case. However, if the deceased has significant assets (such as bank accounts, shares and real-estate) and the Executor is going to seek a release of those assets.

Note: Some asset holders have been known to release modest (smaller) amounts without a Grant of Probate, but this is dependent on a number of factors that are unique to each case.

4. Can an Executor outside the state that the deceased died in apply for a Grant of Probate?

Yes, however in doing so he or she must provide the Court with a valid address for the service of documents that is within the state that the deceased died in.

5. What if the Executor isn’t capable of applying for Probate?

There have been cases in which the Executor of a Will isn’t able to apply for a Grant of Probate. This could occur for a number of reasons, for example the Executor might be suffering from ill health and be physically and/or mentally incapable of managing the Probate process.

See Also: Executor’s Duties

6. What documents will I need to apply for a Grant of Probate?

There are numerous documents required to apply for a Grant of Probate, contact our Contested Wills & Estates Team to find out what they are or send us a message using the form on the bottom of this page.

Turnbull Hill Lawyers, and specifically Adrian Corbould and Mary Windeyer, have been named in the prestigious 2022 Doyles Guide. Both were also listed in the 2021, 2020, 2019 and 2018 guides.

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