Application For Probate

Probate is the process of proving and applying to have a deceased person’s last Will checked to make sure it is valid.  The probate process involves providing the original last Will, proving that a person has died by providing the death certificate, advertising an intention to apply for probate and checking that a valid person has been named as an ‘executor’ in the Will, to deal with the deceased person’s estate.

An ‘executor’ is a person nominated in the Will by the deceased person to carry out the instructions in the Will.

A ‘beneficiary’ is a person who will receive a benefit or property from the Will.

The executor usually applies for the Application for Probate.  The executor and trustee are the people (in most cases they are the same person) who administer the estate left by the deceased person.

Administering the estate means to find, call in and distribute the property in the estate according to the deceased person’s instructions.  Note that disputes about debts or competing claims over the estate must be dealt with first before the estate is distributed in most cases.  If an estate is distributed and a competing claim is proven, then the executor and trustee may be held personally liable.

When a person dies, most of their proven debts and liabilities must still be paid.  This means that the deceased person’s estate may have to be used to pay proven debts and liabilities first before being distributed.  The process of administering an estate can be complex.  Probate is required before proven debts and liabilities can be paid in most cases.

Banks, companies and other authorities will protect people’s assets even if they have died, unless the assets have a small value.  These organisations will require the executor to prove that they have the authority to deal with the deceased person’s assets.  The main source of authority to deal with the assets of a deceased person is a Grant of Probate.

Grant of Probate

A Grant of Probate is a document provided by the Supreme Court when the executor or a probate lawyer makes an Application for Probate.  If the Application for Probate includes the last Will which is proven to be valid, and the law and rules around probate have been met, then a Grant of Probate is issued to the executor.

The executor can then take the Grant of Probate into banks, companies and other authorities as proof that the executor has the authority to deal with the deceased person’s assets.

While an executor can apply for a Grant of Probate, about 95% of applications for probate are made by probate lawyers acting for the executor.[1]

Most people prefer to use a probate lawyer because the application process can be difficult and cumbersome.  Having a good probate lawyer with knowledge of the probate application process makes the process easy, avoids claims by other people and family members of misconduct, reduces delays and avoids pitfalls.

An executor with a Grant of Probate has the authority to deal with a deceased person’s estate, however, they may also be held liable if there are any losses to the estate.  Losses can occur for many reasons, some of them are not always obvious.  That’s why executors often turn to a probate lawyer to help them get a Grant of Probate, and then provide them with advice on administering the estate.

Some probate matters are simple and straightforward.  In simple probate matters, the executor may choose to use a probate lawyer for the probate application process only, and not for the distribution of the estate.  A good example is where the executors are also the only people to receive property in the Will, where the property is to be divided in equal share between them, where there are no completing claims against the estate and where there are no debts owed by the deceased person.

Probate is applied for under the following Acts in the following States:

1.     In Victoria, the Administration and Probate Act 1958.

2.     In New South Wales, the Probate and Administration Act 1898.

3.     In Queensland, the Succession Act 1981.

Other legislation and rules also apply to probate applications which vary in each State.

[1] This is according to the Supreme Court of Victoria and may vary in other States and Territories.

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