Probate

Probate of the Will

When a person passes away, someone has to deal with that person’s estate. The person responsible for dealing with the deceased’s assets and administering the estate is usually the instituted Executor(s) named in the Will.

The Executor applies for Probate of the Will in the Supreme Court of the relevant State or Territory where the deceased held assets. Probate of the Will means that the Will is accepted by the Court as being the last Will and testament of the deceased and the Will is “proved”. The Court retains the original Will.

Probate of the Will protects the Executor (and those parties that hold the assets, for example, the banks) in that it grants the Executor:

a. Title to the deceased’s property; and

b. Authority to deal with the deceased’s Estate.

A Notice of the Executor’s intention to apply for Probate must be published 14 clear days prior to filing the Application for Probate. This puts creditors (that is, those persons who may allege that they are owed money by the Estate) on notice that such an Application will be made.

The total value of the Estate must be determined and disclosed in a document called the Inventory of Property which is filed with the Application for Probate. A filing fee must be paid with the Application for Probate which is calculated on the value of the Estate. However, there is no filing fee
for an Estate valued at less than $100,000.

The Court generally takes about 3 to 5 weeks from the date of filing for Probate to be granted for uncontested, straightforward applications.

Once Probate is granted, the Estate assets may be “called in”. It is recommended that a Notice of Intended Distribution is advertised for a period of 30 days prior to distributing the assets of the Estate.