If you have lost a loved one you may have heard the term Grant of Probate, especially if you are named as an Executor in the Will. A Grant of Probate is needed as part of the process involved in administering an estate. In this article we explore the following common questions:
- What is probate?
- Who can apply for probate?
- What is involved in the probate process?
- How long do I have to apply to probate?
- How long does probate take?
- When can inheritances be distributed?
- What to do first in the probate process
What is probate?
Probate is an Order of the Supreme Court officially approving a Will. Getting a Grant of Probate is what allows the Executors to move forward with administering the Will of the deceased. Where there is no Will, the Executor will need Letters of Administration, rather than probate.
The Grant of Probate is the official document which will be required by and relied upon by banks, share registries, government departments and others in order to release assets to Executors. So if the deceased has a bank account, you as Executor can go to the bank and give them a certified copy of the Grant of Probate to show that you have authority to close the account and have the account proceeds transferred to the estate bank account. Likewise, the Land Titles Office will require, amongst other things, a certified copy of the Grant of Probate before transferring title to any of the deceased’s property to you as the Executor.
Probate in ACT, NSW and Australia-Wide
The process of getting a Grant of Probate is a state-by-state proposition and is determined by where the deceased’s permanent home was at the time they died. So, if their permanent home was in ACT, you will need to file an application to the Supreme Court of the ACT. If their permanent home was in Queensland, it would be an application to the Supreme Court of Queensland. It is the same for every state and territory of Australia.
If the person who died has a property and lives in the ACT but also has a property in New South Wales, then in addition to getting a grant of probate in the ACT, you will need to apply for what is called a Reseal of the Grant of Probate in the state where that property is located.
For example, if the deceased has a property in Sydney and you have applied for a Grant of Probate in the ACT, then after you have received the Grant of Probate in the ACT you will need to file an application for a reseal of the Grant of Probate in the Supreme Court of New South Wales. You cannot start the Reseal Grant of Probate process until you receive the first Grant of Probate.
Who Can Apply for Probate?
The people who can apply for a Grant of Probate are the Executors named in the Will. If the person who died does not have a Will, you will be required to apply for Letters of Administration rather than a Grant of Probate. The person/s who can apply for Letters of Administration when there isn’t a Will are specified in relevant state and territory legislation. Essentially, they will be the spouse, children or next of kin of the deceased. In certain cases persons who are not related can apply but they will have to demonstrate that they have an interest in the estate.
The Probate Process
Before you file an application with the Court, you must first publish a Notice of Intention to make the application. This allows anybody who has an interest in the estate to be aware that the application is being made, as well as informing anybody who may have a claim against the estate. The notice will say that if a person has a claim, they must send it to the Executors via the address provided in the notice.
People may come forward saying they are owed money by the person who died or that they have some other claim against the estate. In NSW and ACT, the Notice will be posted on the website of the Supreme Court.
Having published the notice you must wait fourteen days before you file the application for the Grant of Probate.
The application for the Grant of Probate must be accompanied by an affidavit from the Executors named in the Will. An affidavit is a sworn and signed statement and it is quite formal. Whilst there are differences in form from state to state, the affidavit essentially covers the following:
- The identification of the last Will, the original of which must be filed with the Court
- Proof of Death (by reference to the Death Certificate)
- The identification of the assets and liabilities of the estate together with their estimated value.
So, you will need to have the Original Will, the Death Certificate and also importantly you will need to have other necessary information and documents to be able to prepare an inventory of property and the value of that property along with any liabilities.
In the affidavit there must also be other inclusions. For example, you need to be able to say how you know that the Will was the last Will of the deceased and detail what searches and enquiries you have made to check that there was not a later document than the one you are relying on. This is where assistance from an experienced estates lawyer can prove invaluable.
What Happens After I’ve Submitted the Application for the Grant of Probate?
In most cases, the application for the Grant of Probate is dealt with administratively by a Registrar of the Court, who will read the documents filed with the Court and if satisfied that everything is in order, will issue the Grant of Probate. The Grant of Probate issued is a formal document to which the seal of the Court is affixed and which has attached to it a copy of the Will.
If there are any deficiencies in the documents, the Registrar will raise a requisition (a demand for specific information), which must be satisfied before the Grant of Probate will be issued to you.
How Long Do You Have to File Probate After Death?
Most jurisdictions (states and territories) require that you file the application within six months of the date of death and if you do not file it within six months then you will need to explain why you have not been able to do so. Sometimes it may prove difficult to file during this time because there might be issues around claims that are being made or issues around identifying the assets and liabilities.
How Long Does Probate Take in NSW & ACT?
If all assets and liabilities have been identified without issue, the documentation provided in your affidavit is sufficient and no claims have arisen, the Court process is relatively quick. Most Grants of Probate are issued within 7-14 days of the application being filed with the Court.
When Can Inheritances Be Distributed?
There is a concept called the ‘Executor’s year,’ that has been recognised in the law going back centuries as the time within which the Executor should administer the estate. This time starts from the date of death of the deceased person. Subject to the matters noted below, it will usually be possible to complete the administration of the estate within this period. The ‘Executor’s year’ is not a hard-and-fast rule, more of a guideline. In reality, the time taken will depend on the complexity of the estate and other issues such as whether the estate is involved in any litigious proceedings.
Some estates are more complicated than others as they may involve not only property, shares, superannuation and bank accounts, but may for example include an interest in a business which needs to be sold. In such cases there may be a lot of work that must be done in order to complete the administration and completing the administration may not be possible within the 12 month period. In other cases the administration may be delayed while creditor claims are being determined or where other disputes, including family provision claims are being resolved.
What to Do First in the Probate Process
If you are the Executor of a Will or a close relative who needs to apply for a Grant of Probate or Letters of Administration, seek the advice and guidance of an experienced Estates lawyer to help you.
Specialist wills and estates lawyers who work in this area day in, day out are alert to the potential issues that can arise and can support you with confident decision making and minimise the risk of the probate process being delayed.
Related article: What Is a Letter of Administration? How Is It Different to Probate?
Our team are highly experienced and specialise in helping Executors through processes like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in this form and our team will be in touch.