What is probate?
Probate is an authority given by the Supreme Court that allows an Executor to manage a deceased's person's property, such as dealing with the deceased's bank accounts and real estate. Probate is a Court confirmation that the Will is the last and valid Will of the deceased.
If a person passes away, it will be necessary for the Executornamed in the Will to collect and distribute that person's property. If a person dies leaving a valid Will, then an Executor may need to apply for probate in order to deal with that person's property. If a person dies without leaving a valid Will, then a family member may need to apply forLetters of Administration in order to deal with that property.
Do I have to get probate?
Probate is usually, but is not always required. There is no legal requirement to get probate, however, probate does protect the beneficiaries named in the Will as it certifies the validity of the Will and its contents.
You should make a list of the deceased's assets and liabilities, including the institutions where property is held. You should then check with each individual institution as to whether a grant of probate is required in order to deal with that particular asset or debt.
An Executor has other duties other than obtaining a grant of probate. Read more about Executors Duties.
Can I apply for probate?
- Death of the Will-maker
The first requirement in order to apply for probate is the death of the Will-maker. The Will-maker must have died, which is proved to the Court by obtaining the death certificate. You must obtain the original or a certified copy of the death certificate for the deceased. The details of death should be entered in the online form exactly as they appear on the death certificate. Read more about issues relating to death.
- Executor named in the Will
You must be an Executor named in the Will. You must be over 18 years of age and a capable decision maker. If none of the Executors named in the Will are able or willing to apply for probate, then you cannot apply for probate. You may be able to apply for Letters of Administration. Read more about Issues with Executors.
- Original and valid Will
There must be an original and valid Will left by the deceased. This depends on the particular Will. In general, a Will should be signed and witnessed and dispose of property correctly. A Will may be cancelled if the deceased's relationship circumstances significantly changed since the Will was signed. If you are not sure whether the Will of the deceased is valid, then you should seek formal legal advice.
- Property held in state/territory where probate is sought
In most states and territories, the deceased must have left property situated in the state or territory where probate is being sought.
- Timing to apply: an application for probate should be made as soon as possible after the death of the Will-maker. Usually, if it has been more than 6 months since the death of the Will-maker, the Court will require a reason for the delay in making the application for probate.
When to use the Quick Laws Online Probate Application
The Quick Laws Probate Online Application is designed to help you prepare an application for probate where the circumstances surrounding the application are not complex. The Probate Online Application form is not suitable for applications where:
- There is no Will or the original Will cannot be found;
- You are not an Executor named in the Will;
- The Will has not been signed and witnessed.
If any of the above circumstances apply to your situation, then you should seek professional legal advice from a qualified person, such as a Lawyer.
What details do I need to complate the Online application?
In order to complete the probate online application, it will be useful if you have gathered some of these details first:
- Names and contact details of all Executors named in the Will
- What the Executor intends to do in relation to their responsibility as Executor
- Details of the deceased, such as date of birth and details of death
- A list of the deceased’s assets and liabilities (for all states except QLD)
- For NSW and NT applications, details of the Beneficiaries named and their entitlements under the Will
What do I do once I receive my documents?
Once you have submitted your Quick Laws Probate Online Application, it will then be necessary for you to:
- Sign the forms
- Place any required notices
- Submit the forms to the Supreme Court
- Pay the Court fee.
Your kit includes a step-by-step guide written in plain language to help you file your application.