What is probate?

A grant of probate is sometimes needed when a loved one leaves behind valuable assets, such as property and shares, in their will.

If you're the executor of a will, chances are you have burning questions about probate, from what is probate, to when is probate necessary, to how long does probate take?

Our helpful guide gives you some answers.

What is probate?

Probate is the process that makes sure the instructions in a will can be followed. It involves proving and registering a will in the Supreme Court and, if successful, will result in a ‘grant of probate’. A grant of probate means the will is recognised as legally valid and enables the executor (the person dealing with the estate) to distribute assets to the beneficiaries named in the will. Most financial institutions require a grant of probate before they can release accounts and funds to anyone other than joint account holders.

When a family member passes away, if you’re the next of kin then you need to determine whether they made a will. If they haven't, they are said to have died "intestate". In this situation, any next of kin would need to apply to be appointed as the administrator of the estate. The administrator administers the estate assets according to the rules of intestacy.

In essence, probate means obtaining a document from the Supreme Court that demonstrates the will is valid—and that the executor is then legally permitted to distribute the deceased estate according to the loved one’s wishes. In fact, the executor must swear to the court that they’ll do just that.

Before applying for a grant of probate, it’s helpful to know what probate is, how to apply for probate and how long probate takes.

When is probate necessary?

As a rule of thumb, there are three situations that may call for a grant of probate.

The first is where the loved one’s assets are held by one or more organisations, such as banks and companies; are not jointly owned, and are worth more than a minimum amount set by the organisation concerned. If you’re unsure whether or not this applies to your loved one’s assets, then it could be a good idea to contact each organisation and ask. The rules vary.

The second is where the loved one owns property, but not as a jointly owned asset. When property is jointly owned and one of the joint owners passes away, the property may go to the other owner. If you’re unsure about this, you could check the property’s title deed or seek legal advice.

The third is where the will is contested, which means there’s a dispute about whether it’s valid. Such a dispute could occur for many reasons, including accusations that the creator of the will was unduly influenced by others or was not sound of mind when setting out their wishes.

Before rushing into applying for probate, it’s worth checking whether it’s necessary. Often, the executor of a will can gain access to the loved one’s assets through a less complicated process, by producing a series of documents, such as the will and the death certificate. Applying for probate can be time-consuming and complicated, and so might be better avoided if possible.

How do you apply for probate?

To apply for probate, you must be the executor of the will. If no executor is named in the will, then the loved one’s next of kin should apply for a letter of administration, before investigating the possibility of applying for a grant of probate.

You may make your application in one of three ways: by yourself, via a lawyer or via a trustee company. If you decide on the latter, then usually the trustee company (rather than you) will act as executor. If you decide on applying by yourself, then it’s crucial to be 100% confident in what you’re doing. Making mistakes in an application for a grant of probate can significantly extend and complicate the process.

To begin, you would need to gather necessary documents, which include the current and original will, the original death certificate, and papers containing the details of your loved one’s assets. The website of the Supreme Court in your state has application forms available to download. Most sites include a section, explaining what probate is and how long probate takes.

Once you’ve completed the forms, you’ll need to submit them to the court, and pay a lodgement fee. The forms might be tricky to fill out, so, if you’re having trouble, then it might be helpful to seek legal advice.

Finding a lawyer who’s an expert in what is probate might save you time and money in the long run. It’s also an opportunity to discuss a variety of scenarios, consider questions you might not have thought about and seek guidance.

How long does obtaining a grant of probate take?

The answer to the question of how long does obtaining a grant of probate take varies from state to state and according to the surrounding circumstances. For example, in New South Wales, the Supreme Court website states that the court takes up to 20 days to process an application. Complex applications may need additional time to be considered.

Some issues that might cause delays include having only a copy of the will (rather than the original) or having a will that’s been damaged in some way. If you have a will in your keeping, then it’s vital to look after it carefully and to avoid making any modifications to it whatsoever, including marks, tears, or staples.

Do you need probate to make a Life Insurance claim?

You may not need a grant of probate to claim Life Insurance. Where a beneficiary has been validly nominated, the claim proceeds can be paid directly to the beneficiary.

However, if the loved one hasn’t nominated a beneficiary for their Life Insurance policy, then it might be necessary for the executor to apply for a grant of probate. This can be a difficult and lengthy process, which is why it’s important for everyone with a Life Insurance policy to consider nominating a beneficiary while they’re healthy and well.

Also, worth keeping in mind is that, in most cases, Life Insurance isn’t automatically part of your estate. This is often helpful for the beneficiary because it means the lump sum can be accessed quickly, enabling them to cope with the financial loss caused by the passing of their loved one, without having to worry about how long probate might take. Life Insurance proceeds may go towards living expenses, medical bills, mortgages, and debts, among many other costs. Some Life Insurance policies even include an advance payout while they process your claim which can go towards paying for immediate costs such as a funeral or legal fees needed to settle the estate—such as applying for a grant of probate.

Alternatively, if you’re unable to obtain Life Insurance cover for whatever reason, a Funeral Insurance policy may be appropriate to help your loved ones give you the farewell you deserve as well as settle any matters relating to assets you own.

Learn more about Life Insurance and Funeral Insurance or request an online Life Insurance quote or Funeral Insurance quote.

Important information

This article is a summary and is current at the date of publication. It is not legal advice. The law can change and how it applies to you often depends on your circumstances. If you need legal advice, seek the services of a lawyer who specialises in giving advice on the topic you need advice about.

Cover under the Funeral Insurance Benefit is for Accidental Death only for the first 12 months of cover, including for any increases. Accidental Death has a special meaning in the PDS and some causes of death are excluded during this time—please refer to the PDS or call us for further details. After the first 12 months, the Funeral Insurance Benefit provides cover for all causes of death.