Probate: The info you need to know

When a person that you loved passes away, going through a legal process is probably the last thing you are thinking about, but if your loved one has left your name as the executor in the will or there was no executor in the will, it will need to be dealt with sooner rather than later. The emotions that people usually feel after a loved on has passed away can make this process significantly more difficult that it need to be. At JML ROSE, our lawyers understand this, so this article was written to explain what probate is and to answer the common question people have about it.

There are some certain steps that will need to be taken to take over a loved one’s finances when they pass away. This will typically involve a grant of probate for certain assets.

What is probate?

Probate is a legal process which can sometimes be required to validate a deceased person’s will. A grant of probate is given by the courts, awarding someone – typically the executor of the will – with the right to be responsible for the deceased’s estates. However, several people may believe they have the right to apply for grant of probate. 


When is probate necessary?

Even if the deceased person has a will outlining their wishes for their remaining assets, a probate can sometimes be necessary, especially when the asset is solely owned by the deceased (ie they were not married and assets shared between spouses).

For example, if there is money over a significant value has been left in a bank account, the bank may require a grant of probate before the remaining funds are released to the executor to then be distributed according to the will. The same is required for when the deceased holds a large amount of shares, or a share of property owned as “tenants in common”.

However, in many cases, if the deceased has minimal assets or many of low value, it may not be necessary to apply for a grant of probate to take responsibility for these assets. Instead, the assets – like Retirement accounts, property held in a living trust and life insurance proceeds – can be administered by the executor provided they have the original Will and Death Certificate.

How do you apply for a grant of probate?

The process to apply for a grant of probate isn’t simple and often requires the support of a lawyer.

It requires various legal documents to be prepared, signed and lodged to the Probate Registry.

The three main steps that are followed when applying for probate include:

  1. Advertising the executor’s intention to apply for probate in newspapers
  2. Notifying the public trustee of the executor’s intention to apply for probate
  3. After a period of two weeks, the executor may then file an application for probate

It can usually take between two to three months for an executor of a will to obtain probate, depending on many variables that may be in question and the how busy the Supreme Court Registry is.

This process to be further complicated and the timeframe extended if the validity of the last Will is in question, there is uncertainty as to what document actually constitutes the last Will, or the Will has not been completed or signed/witnessed correctly.

More information

To help you navigate the complexities of probates and minimise the delays of dealing with estate assets, we recommend getting in touch with our team of lawyers. Remember, probate isn’t always required and you should find out if you need to seek probate before you begin carrying out the terms of the will.