Probate - a detailed over from SUPERCentral

The process of probate may seem straightforward but, depending on the complexity of a client's estate plan, along with family dynamics, it is not always easy to navigate.  Rely on us as experts to provide you with the right guidance. Here we cover some of the frequently asked questions about probate.

What is probate?

Simply, probate is the validating of a Will.

Why does probate need to occur?

Firstly, to determine that the Will, is actually a valid and last Will of the person.

Without probate, institutions such as banks, share registries, etc cannot be satisfied as to who has the correct authority to receive the deceased’s assets and may refuse to pay out.

Obtaining a Grant of Probate is generally necessary if the deceased held assets in their name only or jointly with other parties as tenants in common.  Many third parties who hold or control estate assets require a copy of the probate document prior to releasing certain assets or payments (e.g. bank deposits, insurance payouts, aged care accommodation bonds, etc). 

Does every estate go through probate?

Every estate is likely to go through probate. There are few exceptions.

What is a Grant of Probate?

A Grant of Probate is a document issued by the Supreme Court of each State, and that Grant of Probate then formally authorises an executor to manage the estate of a deceased person, in accordance with their Will.

What are the responsibilities of an Executor or Executrix?

The executor or executrix of the Will is responsible for distributing the person's assets to the people named in the Will. This happens after any debts are paid.

Why does probate need to happen?

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or indemnify) the asset holder if it turns out they paid the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

How long does probate take?

There is unfortunately no set answer to this question. It depends on a number of factors.

Using the professional services of a lawyer may help ensure that essential elements are included in the application to streamline the efficiency of the application, and subsequently, the process of probate.

What steps are involved in the process of probate?

In order to obtain a Grant of Probate, the Supreme Court needs to be provided with information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and or executrices, as well as the Will itself.

An advertisement of your intention to apply for probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Obtaining all the necessary information to apply for probate can take a number of weeks to collate. Importantly, you will need the death certificate for the application for a Grant of Probate and possibly for making proper enquires regarding the assets and liabilities.

Depending on the office issuing the formal death certificate, processing times can vary, so waiting for the death certificate to be issued can also add more time to the overall process. Typically, lodging an application for a Grant of Probate will take at best, one or two months, from the date of death. This is indicative only.

Do I need to attend a hearing for probate?

You do not have to attend as a Grant of Probate is completed without a hearing. Once the court receives a Grant of Probate application, it may generally take up to two weeks to process the application. However, this is done at the discretion of the Court, so it could in fact take longer. The Court may also issue a ‘Requisition’ asking for more information relating to the probate application, and this can also delay matters.

What happens after a Grant of Probate is issued?

A Grant of Probate is simply the start of the estate administration. Executors are then able to use a Grant of Probate to deal with the shares of the estate and follow the terms of the Will. Generally, executors have 12 months from the date of death to finalise and distribute the estate, based on the Will and wishes of the deceased.

What may cause delays in finalising the estate?

Depending on the complexity of the estate, the number of beneficiaries and interdependencies, the timeline to administer an estate can vary.

•    Some assets will take time to divest to cash or transfer

•    A challenge to the Will and estate may occur

•    Creditors

•    Finalise the tax returns for the deceased and/or for the estate. Failing to do this may leave the executor personally liable for a tax bill.

Does everyone have a right to see a Will?

Not everyone actually has a right to see the Will. The executor is only obliged to provide a copy of the Will to certain persons on their request as prescribed by law, such as a parent, guardian, spouse, de facto partner or child of the deceased. However, once a Grant of Probate has been granted, a copy of the Will can be purchased from the Court of jurisdiction.

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