Do you know what a Grant of Probate is and when it’s required?
This is one of the most common questions we get from people who have been appointed as an Executor of a Will. The short answer is, “Yes, we can tell you what a grant of Probate is” and whether it’s required to administer an estate or not, “depends.”
Firstly, the word “Probate” is a Latin word and it means “to prove”.
A Grant of Probate is a document that is issued by the Court to the Executor(s) named in the Will that is ‘proof’ or evidence that the person who made the Will has died, that the Will they made is a legally valid Will made in accordance with law and that the Executor(s) has the legal authority or ‘power’ to deal with the estate.
Secondly, whether a Grant of Probate is required “depends” on the assets owned by the will maker which form part of the estate and the requirements of the asset holders to release and/or transfer the estate assets to the Executor, to enable them to administer the estate.
For example, if you own real estate in your sole name at the time of your death, then legally this real estate cannot be sold or transferred without the Executor obtaining a Grant of Probate and providing this with other documents to the relevant State or Territory land titles office.
This brings us to the next questions which is “What assets form part of the estate?” The short answer is that it is only assets a person owns in their ‘sole’ name which forms part of their estate. For more information read our article What can I give away in my Will?
At law, an Executor is entitled to obtain a Grant of Probate where there is an estate asset located within the Court’s jurisdiction. In practice, Executor(s) will generally only make an application for a Grant of Probate where there is at least one (1) estate asset located within the jurisdiction of the Court and the value of it is such that the asset holder requires a Grant of Probate to be obtained.
As an example, a bank account held in the sole name of a will maker with a balance of say $25,000.00 is likely to trigger the bank requiring the Executor to obtain a Grant of Probate of the Will before closing the account and paying the proceeds of account to the Executor.
If a Grant of Probate is required, then it is a fairly straightforward and ‘simple’ procedure to make the application to the Court, unless there are claims being made about whether the last Will was made when the will maker had capacity.
The first step is to lodge a notice of intended application for a Grant of Probate and for any creditors who may have claims against the estate to give notice of their claims to the Executor. After fourteen (14) days from publication of this notice, the application made by way of ‘paperwork’ which includes the death certificate, original Will and Affidavit signed by the Executor and any other supporting documentation, can be filed with the registry of the Court.
One of the good things about this area of the law, at this stage is, that there is no need for an Executor to personally attend the Court in making an application for a Grant of Probate as it is all done by way of documents and through filing the documents at the Court Registry.
If the Court is satisfied with the application, then it will issue the Grant of Probate. If not, then the Court may request or ‘requisition’ the Executor to provide additional information.
The timeframe for the Court to process the application will vary depending on the number of applications that have been filed. Generally, the timeframe is anywhere between three (3) to four (4) weeks, sometimes less, sometimes more from the date of filing the documents with the Court.
After the Grant of Probate has been issued, the Executor has the ‘green light’ and legally has the authority to deal with the estate assets. This may involve realising some assets, selling some assets and essentially collecting all of the estate assets into the one place. When there are sufficient assets in the estate, the Executor can then attend to payment of the estate debts and ultimately a distribution of the estate to the beneficiaries named in the Will.
If you are an Executor of a Will and you don’t know what you are required to do, read Executor of a Will – Do You Know What To Do Next? for more information.
Finally, if you are an Executor and would like our help in finding out whether you need to obtain a Grant of Probate in order to administer the estate or you do need to obtain a Grant of Probate, then please contact one of our experienced estate lawyers who will be able to help you out and if need be assist you in obtaining a Grant of Probate on (02) 8987 0000.