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Probate is the process of formally recognising the validity of the will of a deceased person. A Grant of Probate involves an application to the Supreme Court in a state or territory in which the deceased held assets by a person names as an executor in their will. Where a person dies without a valid will, the deceased is said to have died intestate and it is the role of a surviving family member to instead apply for a Grant of Letters of Administration.

Once the court is satisfied that the last will of a deceased has been proved, a sealed Grant of Probate with the will annexed will be returned to the executor, who can then begin the process of administering the estate.

Why is a grant of probate required?

To protect the interests of those who hold the deceased’s assets, the executor may be asked to prove they are authorised to administer the estate before the assets can be released. The Grant of Probate is the proof required.

The Grant of Probate will confirm that the author of the will has died, the will is authentic and the executor is who they say they were. Once a Grant of Probate has been made, management of the deceased’s assets can safely be transferred to the executor.

When is probate required?

A Grant of Probate is not always required. Where an estate is small, or the assets are held in joint names, it may not be necessary for the executor to apply for a Grant of Probate.

In circumstances where assets such as joint bank accounts and real estate as a joint tenant, the assets will be transferred to the surviving joint owner by right of survivorship on notification of the death of the deceased.

In situations where account funds are minimal, banks and financial institutions may release assets without the need for a Grant of Probate. Each bank and financial institution will set its own monetary limit for which probate is required and in some circumstances, even where the funds are minimal institutions may still require a grant to be obtained.

Generally, where the deceased owned real estate as a ‘sole tenant’ or as a ‘tenant in common’ with others, a Grant of Probate will always be required before the property can be transferred.

How do I apply for probate?

The Supreme Court in each state or territory will have its own requirements and prescribed forms for lodging an application. The costs and filing fees will vary between each state and territory.

For more information on applying for a Grant or Probate in your state or territory check the relevant article on the left hand menu or visit the state or territory’s Supreme Court website.

If you are unsure about how to make your application please contact Armstrong Legal on 1300 038 223 or send an email as we can assist you.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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