What is Probate?

Yarra Ranges Lawyers

What is Probate?

Probate is an application that the executor of an estate makes to the Court after a person passes away to prove that they are the right person to act as executor and that the Will of the deceased person is a valid Will.

Once the Registrar of the Court has reviewed and approved the application, a grant of probate is made to the executor which gives them authority to deal with the estate.

Probate applications are now made to the court online and the grant of probate is electronic, meaning there is no longer any hard copy of the grant of probate.

Why do I need Probate?

You might not need probate! Sometimes assets in a deceased estate can be dealt with without needing probate – especially if the assets are held jointly or if they are low value.

There are certain types of assets which do require an executor to have a grant of probate though, such as refundable accommodation bonds, real property (such as a house) held in the deceased person’s sole name, or bank accounts where the total funds held with that bank is over a certain amount (this amount is set by the bank so it differs between different banks).

If you aren’t sure if you need probate, you can always speak to an estate lawyer.

 

What if there is no Will?

You might still need some type of formal authority to prove that you can act on behalf of the estate, but if there is no Will then you can’t apply for a grant of probate. In these cases, you would apply for a grant of letters of administration instead.

Letters of administration is a similar process, except that you don’t need to prove the Will (because there isn’t one), you just need to prove that you are the right person to act on behalf of the estate. This person is called the administrator and has the same role and duties as an executor when it comes to managing a deceased estate.

It can sometimes be confusing to work out who should apply for letters of administration because there might be multiple people who could apply but only one person should apply (for example if there are multiple adult children or if there are multiple domestic partners).

How long does Probate take?

There are a lot of different factors which come into play to work out how long it will take to get a grant of probate (or letters of administration) from the Court. But when it comes to a standard application, here are some of the things which you need to have before an application can be made:

  • original death certificate
  • original Will (if applicable)
  • details of all estate assets and liabilities

Once we have all of that information, the process to prepare an application to obtaining a standard grant of probate or letters of administration usually takes between 4-6 weeks.

Then, once the grant has been made, the estate assets can start to be dealt with

What happens after the grant is made?

Once probate or letters of administration has been granted the assets in the estate can be dealt with, so bank accounts can be closed, debts paid off, and property sold or transferred to beneficiaries.

There is a time limit for a claim to be made against the estate if a person thinks they are entitled to more from the estate. This time limit is six months from the date that the grant of probate or letters of administration is made.

With this in mind, it is usually advised that the estate is not distributed to beneficiaries before the limitation period has expired. If the executor/administrator does distribute the estate before the limitation period has ended and someone makes a successful claim against the estate, then the executor/administrator could be personally liable for payment to that claimant.

So What now?

Contact us today to book an appointment to discuss your Probate or Letters of Administration query.

Call us 03 5929 7010

Email Us info@yarravalleylegal.com.au