When you’re dealing with the will and estate of a loved one, ‘probate’ is a term you may come across. But what does it mean and why is it important?
In Australia, probate is a legal process that is sometimes required by financial and government institutions to confirm a deceased person’s wishes when large assets are involved.
Probate of the Will is the process by which the Supreme Court confirms that a person’s will is valid and that the executor(s) can act on the will.
Probate is generally only required when the deceased held substantial assets, such as real estate, a large number of shares, or a large amount of cash in a bank account of which they were the sole account holder.
Probate of the Will applications are submitted to the Supreme Court in the state or territory where the person died.
If awarded, a ‘grant of probate’ is the court’s official recognition of the validity of the will and confirms who is the executor responsible for the estate.
This is generally only required by financial institutions if the money is above a certain amount. The threshold for this requirement will differ based on individual institutions. If this is likely to be an issue with your will, it may be worth checking your bank or share platform’s policy regarding deceased estates.
Depending on the financial institution, a copy of the death certificate and the deceased person’s will may be enough for the financial institution to release the money.
It may also be necessary to apply for probate in situations where the will is contested. In these cases, certifying the will is valid is often the first step required by the challengers.
When an Australian dies without leaving a valid will, the laws of intestacy determine who their estate goes to.
Intestacy laws differ from state to state but all aim to ensure the deceased person’s estate is first distributed to their partner and any children, and if they were single and childless, to their next of kin.
Have you ever needed to apply for Probate of the Will? Will a probate be required for any of your assets? Let us know in the comments section below.