Life

Understanding probate: the ins and outs of dealing with a will

1st February 2019

To make sure you have all the information you need, we’ve summed up what you need to know about probate and executing a family member’s will.


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, an application needs to be made to the court for "Letters of Administration" authorising a person to distribute the assets of the deceased family member's estate. In either situation, it’s not straightforward and there’s no guarantee that the family member’s wishes will be honoured.

A will is a legal document that outlines what happens to a person’s possessions and assets when they die. However, a will isn’t legally binding on its own — there are steps that must be taken to make sure the will is valid, just as there are steps that family members can take if they want to contest the will.

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At its most basic a will must be:

  • in writing
  • signed by the will maker
  • witnessed by two people (A beneficiary or their spouse cannot witness a will. If they do, they will lose their entitlements under that will. Also witness must be over 18)
  • made by someone of testamentary capacity.

Testamentary capacity means that someone’s in a fit state of mind to legally understand what they’re doing. If these things are all done, then the will can be used in the probate process to help divide up the estate.

How does the process work?


Once the court process, or probate, is completed and settled, there is then the process of the administration of an estate by the executor or administrator, after the grant of probate or letters of administration have been provided.

This process of administration is something that needs to happen when a family member passes away and before their will can be executed. This process starts when a binding will is created and finishes when the assets listed in the will are formally handed over to the executors of the estate to be distributed. It’s the legally-recognised way to make sure everything listed in the will is in safe hands until it gets handed over to the people listed in the will.

An estate can be made up of:

  • Real estate
  • Shares
  • Loans
  • Income or capital allocated by the will maker; and/or
  • Cash investments
  • Life insurance payouts (unless the deceased already nominated the beneficiaries, and their share, in their policy)
  • Personal property

But doesn’t usually include these items:

  • Jointly-owned assets that are held as joint tenants - e.g. family home (If the owners are tenants in common, the deceased person’s portion can become part of the estate)
  • Super pensions or annuities (except when directed by the member to be paid to the estate)

Here’s what you need to get started with probate:

  • The current and original will
  • Original death certificate from the relevant state registry
  • The probate application
  • Income or capital allocated by the will maker; and/or
  • Lodgement fee

Probate runs through the court system in each state, and executors of the estate need to swear to the court that they’ll distribute the will as instructed.

If a family member wants to contest a will because they feel that it isn’t fair or feel that something has been left out, they need to do it in the probate stage. If someone challenges the will then the court will hold off on probate until the contest is sorted.

When dealing with a will and estate planning it is best to talk to a lawyer to make sure that the whole process is correct before any action needs to be taken. They can guide you through the process, ask questions you may not have considered, and recommend arrangements for a range of scenarios. They can help you prepare your own will, or manage the affairs of a family member. Being prepared can really save you time and headaches down the line.

To find out more about planning a will visit insuranceline.com.au/will to download a free will kit.

Talk to one of our Insurance Specialists today on 13 77 87 for more information about life insurance or funeral insurance.

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