When someone dies, their property must be handled and distributed according to their Will. This process involves several legal steps. One important step is called probate. Many people ask what probate means in Australia, when it is necessary, who can apply, and how to do it. This guide explains these questions clearly.
When someone dies, their property needs to be dealt with and distributed according to the provisions in their will. This process involves many legal steps. One key part is called probate. Many people wonder what probate means in Australia, when it is needed, who can apply for it, and how to do so. This guide explains all those points clearly.
What is Probate in Australia?
Probate is a legal process supervised by the court. It confirms that a Will is valid under the law. The Supreme Court issues a grant of probate. This grant gives the named executor the legal right to manage the estate.
The executor can then collect the deceased person’s assets. They may also pay any debts the person owed. Once that is done, they distribute what remains to the beneficiaries named in the Will.
Not every estate needs probate. Some can be managed without it. This depends on the estate’s total value and the policies of banks or other institutions holding the assets.
When Do You Need Probate?
Probate is usually needed when the estate includes valuable assets. Most banks and companies require it before they release funds or transfer property.
If the estate is worth more than $30,000, probate may be required. However, this threshold is not fixed. Each bank or financial institution sets its own limit. It is important to ask them directly.
Probate is required when the deceased owned property as tenants in common. In this case, each person holds a distinct share. These shares do not transfer automatically and must be passed on through probate.
If the property was held as joint tenants, the situation is different. The share usually passes directly to the surviving owner. In such cases, probate is often not needed.
Probate is also often required to deal with shares. If the deceased held shares on the Australian Securities Exchange or overseas, and their total value exceeds $10,000, probate is usually necessary to transfer or sell them.
Does Probate Affect Superannuation or Life Insurance?
Superannuation funds and life insurers sometimes require probate. This helps ensure they pay the correct person.
If there is a valid binding nomination, the fund may pay the nominated beneficiary directly. Without one, probate may be necessary. It confirms that the executor has the authority to receive the funds.
To avoid delays, it helps to provide all required documents. These may include the death certificate, birth certificate, and Medicare card.
Who Can Apply for Probate?
The executor named in the Will can apply for probate. This person has the right and duty to manage the estate.
If the executor cannot apply because of death, illness, or refusal, another person may step in. This could be a beneficiary or a lawyer. They can assist with the probate process.
How to Apply for Probate in Australia
The probate process differs across states and territories. Each jurisdiction follows its own rules and procedures.
Below is a brief overview of how to apply for probate in the major states and territories.
Applying for Probate in Queensland
In Queensland, you must first advertise your intention to apply for probate. This notice goes to the relevant parties, including the Public Trustee of Queensland.
You must wait at least 14 days. This time allows anyone who objects to come forward.
If there are no objections, you can file your application. The application includes details about the estate’s assets and debts.
Applying for Probate in New South Wales
In New South Wales, you must lodge a notice of intention on the online registry.
You wait 14 days after lodging the notice before filing the application.
You must include an affidavit listing the assets and liabilities of the estate.
There is a filing fee. The amount depends on the size of the estate.
After filing, the court gives you a case number. You use this number for all future communications.
Applying for Probate in Victoria
Victoria requires applicants to advertise their intention in a newspaper.
At least 15 days must pass after the advertisement before filing.
You submit an application along with an affidavit showing the estate’s assets and debts.
Most applications are filed by solicitors or trustee companies.
Documents must be signed and witnessed by authorised people, such as solicitors or notaries.
Applying for Probate in Tasmania
In Tasmania, you start with the original Will.
You must advertise your intention on the Supreme Court of Tasmania website.
Then, you lodge the probate forms. These include an application, affidavit, and inventory of assets and liabilities.
The Tasmanian Supreme Court offers a detailed guide to help you through the process.
Applying for Probate in South Australia
South Australia uses an online system called CourtSA.
You must register and log in to complete your grant application.
Before you start, have the original Will, death certificate, and ID documents ready.
You lodge the application online and pay the required fee.
Applying for Probate in Western Australia
If the deceased had property in Western Australia not held jointly, you need probate.
You can apply online if you have the original Will without damage.
You also need the original death certificate and any codicils.
All statements about assets and debts must be included.
You may apply for probate starting 14 days after the person’s death.
Applying for Probate in the Australian Capital Territory (ACT)
The ACT requires an application and an affidavit for search.
You must publish your intention in a daily newspaper at least 14 days before filing, but no more than three months before.
You file your application with the ACT Supreme Court.
Applying for Probate in the Northern Territory
In the Northern Territory, you publish a notice in the NT News.
You must do this at least 14 days before filing.
The Probate Registry requires you to submit details of the deceased’s assets and debts.
How Long Does Probate Take?
Probate usually takes around four to six weeks after filing the application.
The exact time can vary.
Delays can occur if documents are incomplete or disputes arise.
Estates with complex issues may take more time.
Duties of Executors in Probate
Executors have many responsibilities.
They must find and keep the original Will.
They must find all the deceased’s assets and debts.
They advertise their intention to apply for probate.
They prepare and file the application.
Once probate is granted, they collect assets.
They pay debts and taxes.
Finally, they distribute the estate according to the Will.
Executors should keep clear records.
They may need to provide accounts if asked.
Why Seek Legal Help?
The probate process can be complex.
Executors often face challenges.
Mistakes can lead to personal liability.
Legal advice can reduce risks.
Will and estate lawyers in Brisbane offer support and guidance.
They help executors understand their duties.
Lawyers can manage applications and paperwork.
They also help resolve disputes.
If you are an executor or beneficiary handling probate in Brisbane or elsewhere in Australia, consulting a lawyer is a good idea. Legal experts can make the process easier and help you meet all legal requirements.