What does ‘probate’ mean in Australia?

Losing a loved one is never easy and it can be an emotionally trying time for everyone involved. On top of the grief and mourning, there are also legal and administrative tasks that need to be actioned. One of those tasks is obtaining probate. If you're not familiar with the term, you're not alone.

In this article, we'll explain what probate means, why it's necessary and what you need to do if you find yourself in a situation where probate is required.

What is probate?

Probate is the legal process of proving and registering a deceased person's will with the Supreme Court. The process confirms that the will is valid and authorises the executor to administer the estate in accordance with the deceased person's final wishes. The executor is the person or entity appointed in the will to manage the estate, including distributing assets to beneficiaries and paying off any debts or liabilities.

Why is probate necessary?

Probate is necessary to ensure that the deceased person's assets are distributed according to their final wishes, as outlined in their will. It also provides legal protection to the executor, who could be held personally liable if they distribute assets incorrectly or without proper authorisation.

In some cases, for example, if there is money in a bank account and the person was the sole account holder, the bank may request a grant of probate before releasing the funds to the named Executor. Every financial institution will likely have policies around deceased estates and their handling, so it's best to inquire based on your circumstance.

Some cases, probate may not be required for example, if the deceased person's assets are held jointly with another person and the other person is still alive, the assets will automatically transfer to the surviving joint owner. Similarly, if the deceased person only had small amounts of money or personal belongings, probate may not be necessary. Other scenarios where probate might be necessary includes:

If the person passed has many shares with a company, they might require a grant of probate.
If the person who passed was the sole owner of real estate, a grant of probate might be necessary to transfer ownership. If there are two owners, then the ownership is transferred to the second person.
It's worth noting that every state and territory have different policies around probate, so it's best to check with your local Supreme court.

Do you need a grant of probate to access a super fund or life insurance?

If you're trying to access the funds in a super account or make a life insurance claim, you might need a grant of probate, similar to bank accounts and shares. Keep in mind that life insurance isn't normally considered a part of a person's estate, and there are typically specific instructions outlining who will receive the benefit.

However, some insurers or superannuation funds may only require more straightforward documents such as a death certificate, birth certificate, or medicare records.

It's best to check with the specific institution to determine what documentation is necessary for your claim or access to the account.

How long does the probate process take?

The length of the probate process can vary depending on its complexity and whether there are any disputes. Generally speaking, it can take several months to a year or more to complete.

During this time the estate is effectively frozen. The executor therefore cannot distribute any assets until they have been granted probate.

How do I apply for probate?

Understanding how to apply for a grant of probate is different across Australia. It's always worth checking with your local court or seeking legal advice if you're unsure.

In the meantime, we've provided a few notes on things you should know when applying for probate in different states and territories in Australia.

Applying for probate in New South Wales

You will first need to publish an online notice of your intention to apply for a grant of probate on the New South Wales online registry.
You then need to wait a minimum of 14 days before you can file your probate application.
Once you file your application, you will be assigned a case number that references future matters related to your case.

There are five basic steps when applying for probate in Queensland.
You then must wait 14 days after your notice appears for people to object.
If there are no objections, you can prepare the documents for your application.

The application for probate in Victoria requires you to advertise your intention to apply as the first step.
From there, you'll complete your application and upload your documents.
Solicitors file 95% of applications, but the local Supreme Court advises that you can apply on your own.

The Supreme Court of Tasmania has exclusive jurisdiction in Tasmania to make orders about the validity of a Will, the appointment of an Executor or an Administrator and the administration of deceased estates.

Start by collecting all necessary documents and prepare all necessary additional documents.
Register and log in to Court SA to complete the grant application form.
Lodge your application and pay the fee.

You may not need a grant of probate in WA if the person who passed owned property as a joint tenant with another person.

What if there is no will?

If the deceased person did not leave a will, this is where the probate process can become more complicated. No will means the estate will be distributed according to the laws of intestacy, which varies depending on the state or territory where the deceased lived. The laws of intestacy determine who is entitled to inherit from the estate and in what proportion, based on their relationship to the deceased person.

If there is no will, it can also take longer to administer the estate, as the executor will need to identify and locate potential beneficiaries. It can also be more difficult to resolve any disputes that may arise between potential beneficiaries.