Usually Probate is the first step required in dealing with a deceased estate, although it is not always required as it depends upon the assets owned by the deceased. Generally, the institutions holding money or assets on behalf of the deceased person (such as their bank, share registry or aged care facility) will tell the executor if they require a copy of Probate to be provided in order to transfer the assets or money to the executor as trustee of the estate. For example, many banks require that if a deceased held more than $50,000 in accounts with their bank, they will not release the funds until a copy of Probate is provided. 

Even for very small estates where no institution requires Probate, there are often good reasons for applying for Probate as doing so can protect the executor by helping to confirm no one else has found a later Will and that they are properly authorised to act and deal with the assets and liabilities of the estate. Additionally, proceeding to deal with a deceased estate without Probate means doing so without the sanction of the Court and may expose you to personal liability in relation to the actions taken by you in connection with the estate. For example, an executor who does not apply for Probate may find out that the deceased’s Will was invalid or that there was a more recent Will in place after having already distributed the estate to beneficiaries, which may result in costly litigation or a claim for damages being made against you.

To apply for Probate, you will generally need to be the executor or executors named in the deceased person’s last Will. If multiple executors are jointly named, they will usually need to apply for Probate together as joint executors. There are some exceptions, which we can discuss as part of our Premium Probate Service.

Some states require that the executor apply for Probate within six months of the deceased’s death. Failing to do so can cause additional complications and an explanation being required for any delay. The estate could be left open to fraud or creditors may take action in relation to unpaid debts. Even in states and territories without such a requirement, it is always prudent to apply for possible as soon as possible after the Death Certificate has issued, failing which risks may apply.

As part of the process of applying for Probate, an advertisement is placed which notifies the public of your intention to apply. This may take up to 1-2 weeks to appear and is required to ‘run’ for a further 2 weeks before the application can be filed. Once filed, the Court will usually take a further 1-3.5 months before Probate issues. Therefore, subject to Court processing times, the process often takes 3–4 months. The process of estate administration which the executor subsequently undertakes will depend upon the complexity of the estate, but executors should generally try to complete it within 12 months from the deceased’s death, failing which complications may arise.

Probate can only be granted where the deceased person left a valid Will. Generally, the original last Will is required by the Court. It is generally possible to apply for Probate using a copy of the Will however this is very complex and requires advice from an experienced lawyer. If the deceased never made a Will, certain individuals may be able to apply for Letters of Administration, which is similar to Probate. Applying for Letters of Administration is more complicated as there is a strict order of priority for people who can apply and a determination is required as to who is eligible, and who the eligible beneficiaries are. We can discuss this as part of our Premium Probate Service.

If the person named in the Will as executor is deceased, can’t act or doesn’t wish to act, someone else will be able to apply. Usually, a back-up executor will be named in the Will and can apply for Probate, although the Court will require the Death Certificate of the first-named executor (if they are deceased) or a signed renunciation form (if they are unable or unwilling to act). We can assist with this as part of our Premium Probate Service.

If there is a dispute between family members around who should apply for probate, concerns that the deceased may not have had full mental capacity when their Will was made, or concerns that somebody may wish to contest the Will or seek further provision from the estate, very costly litigation can result and many risks apply. It is therefore critical that advice is sought from an experienced lawyer.