Estate matters: an essential guide to probate

Probate is the name of the legal process through which a person who has passed away's estate is administered according to their legal wishes, usually through their Will. The probate process settles the affairs of the departed and safeguards the rights of beneficiaries and creditors. While probate laws vary from one Australian state or territory to another, there are fundamental steps that are common to most cases, writes Margaret McKay.

The probate process in Australia: what you need to know

Probate is a legal term that refers to the process of proving and registering the last Will of a deceased person. Probate is necessary to ensure that the Will is valid and that the executor has the authority to administer the estate according to the wishes of the deceased. Probate also protects the interests of the beneficiaries and any creditors of the estate.

The probate process in Australia varies depending on the state or territory where the deceased person lived and owned assets. However, there are some common steps that apply to most cases.

Just 5 simple probate steps after someone has passed

1. Locate the Will and the death certificate: The executor needs to find the Last Will and Testament of the deceased person, and obtain a certified copy of their death certificate. A funeral attendant can source the death certificate for you, or you can apply through the appropriate state or territory government department, such as Births, Deaths and Marriages. The will should name the executor and provide instructions on how to distribute the estate. The death certificate is required to prove that the person has passed away and copies will be needed to notify various institutions and authorities.

2. Publish a notice of intention to apply for probate: The executor needs to publish an online notice of their intention to apply for probate on the relevant state or territory online registry. This notice informs the public that the executor is seeking probate and allows anyone who has a claim or objection to the will to come forward. The notice must be published at least 14 days before filing the probate application.

3. Prepare and lodge the probate application: The executor needs to prepare and lodge the probate application with the Supreme Court of the state or territory where the deceased person lived. The application consists of several documents, which usually will include:

• A cover sheet with basic information about the deceased person, the executor, and the estate.
• The original will and any codicils (amendments) attached to it.
• A certified copy of the Death Certificate.
• An inventory of assets and liabilities of the estate, including their values and locations.
• An affidavit (a sworn statement) by the executor, confirming their identity, their relationship to the deceased person, and details of the will and the estate.
• Any supporting documents, such as consents from other executors or beneficiaries, renunciations from those who do not wish to act as executors or beneficiaries, or evidence of any special circumstances that may affect the probate application.

4. Publish a probate notice: Once the probate application is filed, the executor needs to publish a probate notice on the online registry. This notice informs the public that probate has been granted and gives details of where and when it can be inspected. The notice also invites anyone who has a claim against the estate to notify the executor within a specified period, usually six months.

5. Administer and distribute the estate: After obtaining probate, the executor can proceed to administer and distribute the estate according to the will. This involves:

• Collecting and securing all assets of the estate, such as bank accounts, shares, property, vehicles, jewellery, etc.
• Paying all debts and liabilities of the estate, such as taxes, funeral expenses, mortgages, loans, credit cards, etc.
• Distributing all remaining assets to the beneficiaries according to their entitlements under the will.
• Preparing and lodging final accounts and tax returns for the estate.
• Obtaining releases from all beneficiaries confirming that they have received their share of the estate and have no further claims.

If the estate is complex, it is advisable for executors to seek professional help from solicitors, accountants, or probate consultants.

As a Citro member, you can get a free quote for probate services.

Managing the 'what ifs' of probate

• If there was no Will, then there can be no Grant of Probate since it is the executor of a Will who must apply. In that case, the next of kin or person who believes they would have been a beneficiary had there been a will must apply to the Supreme Court for Letters of Administration.

Read the perils of dying intestate

• If the deceased had minimal assets, then probate will not usually be required. Some institutions may still require probate before they will release funds or assets roughly between $20,000 and $50,000.

• If assets are from life insurance policies or superannuation they do not necessarily pass to the estate, but rather, directly to the nominated beneficiary. Even in these cases, trustees of a will may require authority in the form of probate before they will pay out the policies or superannuation to the named beneficiary.

• If assets are held in joint names – typically, a family home, or bank account – these pass directly to the joint owner, and do not go to the estate.

Probate is a methodical process. Take your time.

Advice given in this article is general in nature and is not intended to influence readers’ decisions about investing or financial products. They should always seek their own professional advice that takes into account their own personal circumstances before making any financial decisions.

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