What is probate and how does the process work?

Deputy Editor · 4 August 2021
If a loved one passes away, there are certain steps that may be required in order to take care of their finances. In some cases, obtaining a grant of probate is one of those steps.

What is probate?

Probate is a legal process that is sometimes required to validate a deceased person’s will in order for their wishes to be carried out by an executor named in the will. The executor is the person responsible for administering the deceased person’s estate, ensuring debts are paid and remaining assets are distributed.

If awarded, a ‘grant of probate’ is the court’s official recognition of the validity of the will and who the executor responsible for the estate is.

When is probate necessary?

Probate may be required when a person has passed away and leaves behind certain kinds of assets. For example, if there is money in a bank account and the deceased was the sole account holder, the financial institution may ask for a grant of probate before they will release the funds to the executor.

This is generally only required if the money is above a certain amount. For smaller amounts, other documents, such as a copy of the death certificate and the deceased person’s will, may be enough for the financial institution to release the money. Each financial institution is likely to have its own policy regarding deceased estates and it may be worth checking with them regarding your own circumstances.

Similarly, if the deceased person held a large number of shares, the company or trading platform with whom the shares were held may require a grant of probate before they will release the shares.

Applying for probate may also be appropriate in other circumstances – if a person’s will is contested, for example.

In addition, a grant of probate is generally required before a deceased person’s real estate can be transferred to someone else. However, according to the Supreme Court of New South Wales, this may not be necessary if the deceased owned all of their property jointly with another person who is still alive. In this case, ownership would transfer to that second person and no probate would be necessary. Bear in mind that probate is administered slightly differently in different parts of the country, so you may wish to check with your local Supreme Court or obtain legal advice to confirm what the laws are where you live.

Do I need probate in order to make a life insurance claim?

Generally speaking, but depending on the particular circumstances, a grant of probate may not be required as part of the standard life insurance claim process for most providers. This is because a life insurance policy typically isn’t included as part of a deceased person’s estate. Instead, the policy usually includes specific instructions around who will receive the benefit in the event of a successful claim.

However, with more complicated life insurance claims or higher value policies, a grant of probate may be required to clear up how the policy benefit is to be distributed.

Even with more straightforward claims, the insurer may still require the person making the claim to provide documents. These could include a death certificate, birth certificate, Medicare records and medical records from the policyholder’s doctor(s).

Who applies for probate?

In most cases, only the executor – or executors if more than one is named in the will – can apply for probate. In some Australian states and territories, the applicant must also be over 18 years of age to apply.

People often seek the help of a lawyer in submitting the application and dealing with the court throughout the process, and although this is usually not mandatory, it may be a good idea if you aren’t sure whether you should apply for probate, or if you think you may need some assistance.

How to apply for a grant of probate

The process of applying for probate differs in each Australian state and territory, and it may be worth checking with your local court or seeking legal advice relevant to your location.

We’ve provided some general points below about how the application process works in each state and territory, to give you a broad idea of what could be involved.

It’s worth also noting that if a deceased person had assets in more than one state – for example property in Victoria and in New South Wales – the executor of the will may need to apply for a grant of probate in each state.

The Supreme Court of the Australian Capital Territory’s guidelines include the following points:

  • The applicant must publish a notice of intention to apply for probate in a daily ACT newspaper, at least 14 days and no more than three months before the application is filed.
  • Applicants must complete and submit a series of forms along with the original will.
  • If the application is being made by anyone other than the executors named in the will, the reason why the executors are not applying must be explained in the application.

According to the Supreme Court of New South Wales:

  • Before applying, the applicant must publish an online notice of their intention to apply for a grant on the New South Wales Online Registry. They must then wait at least 14 days from the date of publication to file an application for probate.
  • All applications must be filed at the Supreme Court of New South Wales Registry, either in person or by post. The application must be accompanied by supporting documents including the will and death certificate, as well as an application fee.
  •  The Supreme Court of New South Wales says it aims to process applications within five business days.

When it comes to applying for probate in the Northern Territory, its Supreme Court’s instructions include the following points:

  • The first thing you have to do is place an advertisement outlining your intention to apply in the NT News in the Legal Notices section. This must happen at least two weeks before the application is submitted.
  • In addition, all applicants must contact the Public Trustee’s Office before submitting an application to check whether the Office has a will made out by the deceased.
  • The documents that applicants will typically need to file include the application form, the original will, original death certificate, plus full details of assets and liabilities of the estate.
  • The Supreme Court of the Northern Territory provides an application kit for those applying. This kit contains relevant instructions for how and where to submit the application. It’s worth noting that there are different versions of the kit to be used by applicants in different parts of the Territory.
  •  A fee applies to applications for probate.

Queensland’s court service outlines the steps for applying for probate, including:

  • You must advertise your intention to apply for probate in the Queensland Law Reporter, a publication which lists authorised reports of the Supreme Court of Queensland, and you must give a copy of your notice to the Public Trustee. You will likely be charged an advertising fee for this service.
  • You must then wait 14 days after your notice is advertised before applying. This gives anyone interested in the estate time to lodge an objection.
  • Once the notice period has elapsed, you can file your application and supporting documents at the Supreme Court, either in person or by post. Supporting documents include the will and death certificate. A fee is also applied.
  • The Queensland court service says that, if approved, the grant should be ready in approximately three weeks.

The Courts Administration Authority of South Australia outlines the process, which includes the following points:

  • The first step is deciding whether you need to apply for probate and the Court to which you apply cannot advise you on whether it’s necessary. It’s the applicant’s decision.
  • If you decide it’s necessary to apply, collect all necessary documents, including: Original will, death certificate, details of assets and liabilities.
  • To submit the application yourself you will need to have created an online account with CourtSA. You then log in, complete the application form and pay a fee. The original will needs to be lodged separately by post.
  • If approved, the grant is issued online and can be accessed by logging in to CourtSA. No paper copies are issued.
  • Courts Administration Authority of South Australia notes that currently about 90% of applications are filed by solicitors, the Public Trustee or trustee companies on behalf of the applicant, rather than by the individuals themselves.

According to the Supreme Court of Tasmania:

  • Applicants need to submit a notice of intention to apply for probate, at least 14 days in advance of proceeding.
  • For the application itself, you’ll need to collect the necessary supporting documents, including the original will and original Record of Death.
  • Applicants need to complete and sign the probate forms and submit them along with the supporting documents to the Supreme Court of Tasmania in Hobart, either in person or via the post. A fee must also be paid.
  • Applicants can request (again, for a fee) a provisional assessment of their application before submitting the full application.

The Supreme Court of Victoria’s advice in relation to the process includes the following points:

  • You must advertise your intention to apply for probate at least 14 days in advance of making the application. There’s a fee for advertising your intention to apply.
  • Applicants must print and complete the application form kit, which can be downloaded from the Supreme Court of Victoria’s website. It must be submitted in person at the Probate Office.
  • The application must be accompanied by supporting documents, including a record of the ‘intention to apply’ advertisement you placed, the original will, the original and a photocopy of the death certificate. An application fee is also charged.
  • If awarded, the grant will be posted to you after five to 10 business days.

According to the Supreme Court of Western Australia:

  • Before applying for probate, the applicant will need to collect certain documents, including the original will, the original death certificate and all statements relating to assets and liabilities.
  • You can file your application, and pay the relevant fee, at the Supreme Court of Western Australia in person or via the post.
  • The Court says that it aims to process applications within 10 business days of receiving them, but it explains that complex applications may take longer.

Cover image source: The Supreme Court of Western Australia seen from Stirling Garden in Perth, by MXW Stock via Shutterstock./Shutterstock.com

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