What is Probate? A Guide for Australian Families 

When someone passes away, the legal process that follows can be overwhelming and complex. One key aspect of this is something called probate, which is a legal document that often raises many questions. Our Wills & Estate lawyers explain the elements to probate and provide valuable insights to help you navigate this challenging time. This is important for executors and beneficiaries to gain an understanding of the process and timelines. 

What is Probate? 

Probate is the legal process of validating a deceased person’s Will. It is an application the executor(s) of the Will makes to the Supreme Court to prove that the Will is authentic and valid.   

If the Supreme Court is satisfied that the Will is valid, they issue the Grant of Probate to the executor(s), which gives the executor(s) the authority to manage the deceased’s assets, pay off debts, and distribute the estate to the beneficiaries in accordance with the terms of the Will. 

Estate lawyers assist you in the probate process in a variety of ways ensuring that the Grant of Probate is approved quickly. If there are questions or requisitions from the court about the application there will most likely be a delay in issuing the grant of probate. It is important that the application is done correctly to avoid delays. 

How Long Does Probate Take? 

The duration of the probate process can vary depending on several factors, including the complexity of the estate, whether the Will is prepared correctly, whether there are any disputes in the estate and the workload of the Supreme Court of Victoria. and whether there are any disputes. Typically, the initial application for probate usually takes around 4-8 weeks, but delays can occur if there are complications or disputes.  

When is Probate Required? 

Probate, in this example Victoria, is required when any of the deceased’s solely owned assets are more than $25,000 in monetary value. There is some scope for compromise in this area, as some financial institutions may be prepared to release funds to an executor of an estate, or next of kin, when assets exceed $25,000 but only by a minimal amount.  

However, each case is unique, and it is advisable to seek legal advice to determine whether it is necessary to make an application for probate. 

When is Probate Not Required in Victoria? 

Probate, in Victoria for this example, may not be required if the estate is small or if all the deceased’s assets are jointly owned and automatically transfer to the surviving joint owner. The joint ownership of assets can be quite complicated and there are circumstances where the deceased’s Will is relevant.  Other states will have slight differences, but will follow similar processes.

Getting legal advice on probate and preparing the application will allow you to quickly navigate the legal system with ease.  

What Happens After Probate is Granted? 

Once probate is granted in Victoria, the executor can begin administering the estate. This involves collecting and securing assets, paying outstanding debts and taxes, and distributing the remaining assets to the beneficiaries as outlined in the will.  

The executor must also keep accurate records and may need to provide an account of their administration to the beneficiaries. 

Additional Considerations 

Intestacy 

If a person dies without a will, they are known to have died intestate (which means without a Will). In these circumstances, someone must still make an application to the Supreme Court of Victoria to have authority to manage the estate, but unlike Probate, this application is called Letters of Administration.  

When a Grant of Letters of Administration is issued by the Court, the estate administration process follows a very similar timeline to Probate. The only main difference is how the estate is distributed. As the deceased did not leave a Will, the estate is distributed according to intestacy laws, prioritising close relatives and next of kin. 

Invalid Wills 

Something which can cause significant difficulties for executors to obtain Probate is when Wills are not prepared correctly. Either they fail to satisfy the signing requirements under the Wills Act 1997 (Vic) or there are other concerns, such as the testator did not have the requisite testamentary capacity to do a Will.  

If these issues are present, the Supreme Court of Victoria may requisition the application for Probate. In some cases, someone else might even seek to lodge a probate caveat to stop an executor obtaining probate before a Court Hearing.  

In you think there could be a dispute of the Will or issues with the validity it is important to get expert advice. This will ensure that the any disputes are resolved quickly or pre-empted. 

Dealing With Estate Disputes 

We help clients with complex matters and can assist if there is a dispute about the Will or to assist in removing executors. There are several issues that can flare up at this time when administering an estate. Our lawyers are astute and limiting the impact of any dispute and giving you definitive answers and options to your legal questions. 

Estate Planning 

It is essential that Wills are done properly by a professional to try and protect against these issues as much as possible. If you are dealing with the passing of a family member it is a key time to review your own Wills and succession planning.  

The grieving process is compounded by a complicated administrative process. If not carefully considered your beneficiaries could dealing with a complex process to divide your estate.  

Getting Quality Advice Will Save Time & Money 

Navigating the probate process can be daunting, but understanding its key aspects can ease some of the stress. Good legal advice will always save you time and money and ensure that your matter is well managed.  

Regardless of what State in Australia you are dealing with a deceased estate, knowing when probate is required and the steps involved can help you manage the estate effectively.  

At PCL Lawyers, we have dedicated Wills & Estates Lawyers and are committed to providing expert legal guidance. We help you through this challenging time and ensure that you understand the process and know what next steps are required.  

Contact our Probate Lawyers today for professional advice tailored to your specific needs.