What is probate and how does the process work?

When a loved one dies, there are certain things you may be required to do in order to take care of their estate. In some cases, obtaining a grant of probate is one of those steps. So how does probate work?

What is probate?

Probate is a legal process that’s sometimes required to validate a deceased person’s will so their wishes can be carried out by any executors named in the will.

An executor is the person or people responsible for administering a deceased person’s estate, to make sure any debts are paid and remaining assets are distributed as detailed in the will.

A ‘grant of probate’ is a court’s official recognition that a will is valid and the nominated executor(s) are responsible for dealing with the deceased person’s estate.

The rules and requirements of how probate works can vary across Australia’s states and territories.

When is probate required?

Probate may be required when you, as the executor(s), need to access certain assets of the deceased person that are to be distributed in accordance with their will.

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 an executor.

This is generally only required if the money in the account is above a certain amount. For small 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 will likely have its own policy regarding deceased estates so it may be worth checking with them to see what they require.

Similarly, if the deceased person held a large number of shares, the company or trading platform where the shares are held may require a grant of probate before it will release the shares.

A grant of probate is generally required before a deceased person’s real estate can be transferred to someone else.

This may not be necessary if the deceased owned the real estate jointly with another person who is still alive. For example, the Supreme Court of New South Wales says in such cases the ownership would transfer to that surviving joint owner and no probate would be needed.

You may need to apply for probate in other circumstances, for example, if a person’s will is contested.

Bear in mind that probate is administered slightly differently across Australia’s states and territories, so you may want to check with your local Supreme Court or obtain some independent legal advice to confirm what rules apply.

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Do I need probate to make a life insurance claim?

A grant of probate may not be required as part of a life insurance claim process for a policy held by the deceased person.

That’s because a life insurance policy typically isn’t included as part of a deceased person’s estate. Instead, the policy usually includes specific instructions about who will receive any benefit in the event of a successful claim.

If no one is named in the policy then a grant of probate may be required to help clear up how any benefits are to be distributed.

An 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 can apply for probate?

In most cases, only the executor(s) of a will can apply for probate. In some Australian states and territories, the applicant must also be over 18 years of age to apply.

You may want to appoint a solicitor to help with the application and deal with the court throughout the process.

It’s not mandatory but it may be a good idea if you’re not sure whether you should apply for probate, or if you think you may need some assistance.

How to apply for probate

The process of applying for probate differs in each Australian state and territory so you may want to check with your local court or seek legal advice relevant to your location.

If the deceased person had assets in more than one state or territory – for example, had a property in Victoria and in New South Wales – you may need to apply for a grant of probate in each location. You may be able to apply for a “reseal of a grant” if probate has already been granted in another state or territory, or certain countries.

You are generally required to publicise your intent to apply for probate at least 14 days before you make your application. This can usually be done online via the relevant supreme court website or some other online registry.

You will need to check what documentation you need to accompany your application and any relevant fees.

For more information see the following websites.

Applying for probate in the ACT

• The Supreme Court of the Australian Capital Territory – Probate, Administration, Reseal of Foreign Grant

Applying for probate in New South Wales

• The Supreme Court of New South Wales – Applying for a grant of probate

Applying for probate in the Northern Territory

• The Supreme Court of the Northern Territory – Wills & probate

Applying for probate in Queensland

• The Queensland Courts – Wills and probate

Applying for probate in South Australia

• The Courts Administration Authority of South Australia – Probate

Applying for probate in Tasmania

• The Supreme Court of Tasmania – Probate

Applying for probate in Victoria

• The Supreme Court of Victoria – Wills and probate

Applying for probate in Western Australia

• Supreme Court of Western Australia – Wills & probate

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Additional reporting by Sean Callery.

Cover image source: B-E/Shutterstock.com