Probate in Australia
If your loved one or someone you know has passed away and left a Will also known as a Will and Testament, the Will needs to be approved before the instructions in the will can be legally carried out. The process of proving the Will is called probate and once approved a Grant of Probate is provided.
Applying for Probate
Probate usually involves completing documents including an affidavit, other sworn documents, advertising the intention to apply for probate to the public and submitting this information to the appropriate Court. The Court will then review the information supplied for probate, in accordance with the law, the Court’s rules and Practice Directions. The Court will ensure the Will is valid in accordance with the supplied information, ensure advertising of the application has been completed and that the estate can be lawfully administered based on the supplied information.
The requirements to apply for probate usually include the requirement to:
- Advertise the intended probate application to allow members of the public to be informed and to raise any objections
- Provide required supporting documents
- Prepare the application in accordance with Practice Directions including any requirement for parchment, font types and font sizes
- Provide information in an affidavit in support of probate
- Sign and swear other documents about the assets and liabilities in the estate
- Answer any requisitions raised by the Court
Our estate lawyers are trusted to complete the entire probate process to help ensure probate is completed correctly, as quickly as is reasonably practical and that you know your legal rights and obligations around probate.
Probate and Administering an Estate
When probate has been submitted and approved, the Court will issue a Grant of Probate. With the Grant of Probate, the executor may then begin lawfully calling in the property and assets in the Will. This can include going to banks to close accounts and transfer funds, create trust accounts for the estate, transfer or sell real property and deal with property generally.
The trustee (usually the same person as the executor but not always) may then begin distributing the property subject to the law. It is important to understand that there are complex laws in place for the distribution of property and that an executor/trustee must adhere to these laws. If these laws are not adhered to, the executor/trustee may become liable for any losses from the estate.
Administering an estate after a Grant of Probate has been given may include paying any debts owed by the estate, determining where the money will come from for paying the estate debts, the priority of distribution of the property in the Will, identifying exactly who the beneficiaries are, keeping an account of the distribution to the beneficiaries and keeping accounts generally. The accounts of the estate can be audited by the Court so keeping accurate records is important.
Our estate lawyers can provide you with legal advice and assistance after your Grant of Probate has been issued with administering the estate, standard forms for receipting distribution of property, advice about maintaining any property in the estate prior to distribution and letting you know about any time frames for contested applications, family maintenance and creditor claims.
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