There is a Supreme Court Probate Registry in every Australian jurisdiction. It is the only entity that can issue a Grant of Probate, which is a legal document that establishes an executor’s authority to deal with a deceased estate. Although probate is a process that occurs in each state and territory, there are different rules, processes and laws that govern probate across the country. This article provides an overview of the role of the Probate Registry in Australia, but before you take action, you should seek specific advice from a legal specialist in your jurisdiction.
What is the Role of the Probate Registry?
The Supreme Court has exclusive jurisdiction in each state and territory to make orders in relation to the validity of wills, the appointment of an executor or administrator of a deceased estate, and the administration of deceased estates. The Probate Court is a division of the Supreme Court in each jurisdiction. The Probate Registry handles applications for grants and additional related matters, and probate officers review applications to ensure adherence to the relevant rules and legislation. As its name suggests, the Probate Registry keeps a register of all grants issued by the Court.
Probate is the process of establishing that the will of a deceased person is legally valid. The Probate Registry issues three different types of grants. The first is a Grant of Probate, which is issued where there is a valid will, and the named executor has applied for authority to administer the estate. A Grant of Letters of Administration is issued when there is a valid will, but someone other than the named executor applies to administer the will. This can happen because the executor has predeceased the testator, or the named executor is otherwise unwilling or unable to act. A Grant of Letters of Administration on Intestacy is issued when there is no valid will, and an eligible person applies to the Probate Registry to be appointed administrator, intending to distribute the estate in line with the rules of intestacy. This is the most complex circumstance and the least desirable, as it means that the specific and personal wishes of the deceased have no bearing on the distribution of his or her estate, and there may be lengthy delays and cost implications for the family.
When is Probate Not Required?
When probate is required, an executor of a will must apply for a grant from the Probate Registry in a timely manner. The executors can apply for probate themselves or have a lawyer act for them. Employing a lawyer may be advisable in more complex cases or where there is likely to be family disputes arising from the distribution of the estate.
Probate is usually only required when the estate consists of substantial assets in addition to a family home. For instance, if a bank holds an asset in excess of $50,000, many banks will not release the asset to the beneficiary unless they receive a Grant of Probate sealed by the Court. Probate is usually not required when the only sizable asset is the family home, as the house is often jointly held with a surviving spouse, and even when it is not, the land registry office may not require a Grant of Probate to transfer ownership.
After probate is granted, an executor is responsible for distributing any assets in accordance with the will. Some Australian states and territories require a notice to be published before the estate can be distributed to the beneficiaries.
Details for the Probate Registry in each jurisdiction can be found on the relevant Supreme Court website, and the links are provided below.
New South Wales
The relevant rules for the New South Wales Supreme Court can be found here.
Information about the Queensland Supreme Court can be located here.
You can learn about the jurisdiction of the Supreme Court of South Australia here.
The relevant information can be found at the Supreme Court of the Northern Territory.
Information on the ACT Supreme Court can be found here.
The Supreme Court of Victoria
Follow the links from “Probate” to find the Supreme Court of Victoria’s services, information and forms.
Find out more at the Supreme Court of Tasmania under ‘Probate & Administration’.
Information on the jurisdiction of the Supreme Court over probate and the administration of deceased estates in Western Australia can be found here.
The field of law that deals with wills and intestacy (Succession Law) is often complex and requires specialist legal advice. We can help if you have any questions about the function of the Probate Registry or need help applying for a Grant. If you are the executor of an estate or likely beneficiary of an intestate estate, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.