If the deceased had a valid will.
Probate
Probate is a grant by the Supreme Court certifying that the Will of the deceased is valid and is the last will and testament of that person. Once Probate has been granted, the Probate document that is issued by the Court acts as proof that the executor has the authority to deal with and administer the estate.
There is no legal requirement to obtain a grant of probate in every deceased estate. However, some estate assets cannot be transferred or distributed to the beneficiaries until a grant of probate from the Supreme Court is obtained. It depends on the type, size and value of the deceased’s assets. For example, real estate that is held solely by the deceased person or is held as tenants in common with another person will always require a grant of probate in order to deal with it.
Applying for Probate
The Executor of the Will is the person responsible for applying for a grant of probate. The application is made to the Supreme Court for that state for each grant. Whilst an executor can apply for probate themselves, due to the legal complexities involved with the grant, the executor usually employs a lawyer to carry out the process. The executor will need to assist the lawyer with information about the deceased and their assets in order to assist the process.
The legal costs and Supreme Court filing fees for making an application for probate is determined by the gross value of the estate assets. This does not include assets that are held as joint tenants with another person.
The Process
The lawyer or applicant submits a Notice of Intention to Apply for Probate on the Supreme Court online probate system. This serves as notice to anyone who may have a more recent Will to allow them to come forward before probate is granted and the assets distributed. It also provides notice to creditors in case the deceased had outstanding debts.
After 14 days from the date of publication of the Notice, the executor or applicant may apply to the Supreme Court for an Application for a Grant of Probate.
A grant of probate is usually issued within 1-4 weeks of the application being filed, unless the Supreme Court requires additional information. Once probate has been granted, the executor or applicant will receive the Original Grant of Probate with the Court Seal.
The executor will then be able to deal with the deceased’s assets. A certified copy of the probate document will be required as proof of the executor’s authority in dealing with the estate assets. The executor can then arrange to wind up the estate by collecting the deceased’s assets, paying any debts and distributing or transferring the assets to the beneficiaries. A lawyer usually helps with the process of estate administration and any costs involved will be paid out of the estate.
If the deceased did not have a valid will
When someone dies without a valid will, they are said to have died intestate. In this case, it is not an application for probate but an application to the Supreme Court for a grant of Letters of Administration. Usually the grant is made to the next of kin of the deceased as the administrator of the estate. If there is no next of kin or no suitable person the Court can appoint a third party to act as administrator.
When a person dies intestate the estate assets must be distributed pursuant to the relevant legislation in each State. Therefore, Letters of Administration is granted by the Court to certify that the administrator has the authority to manage and deal with the estate where there has been no valid Will.
Questions
If you have any questions or require any further information please contact
Kristie Krainz
Principal Lawyer
T: 02 4920 9255
E: Kristie@burnskrainzlegal.com.au