The Probate process in Australia occurs after an individual passes away. It involves validating and executing the deceased’s Will and ensuring the orderly distribution of their assets and estate.
This article guide outlines the probate process in Australia, covering key aspects, requirements, and potential challenges.
Understanding Probate
Probate is a legal process that grants authority to an Executor or Administrator to manage and distribute the deceased person’s estate as set out in their Will. When someone passes away, their Will, is presented to the Supreme Court of the respective State or Territory for validation, known as ‘obtaining probate’.
Probate Jurisdiction
Australia has multiple State and Territory jurisdictions, and the Probate process is subject to their individual legislation and process. Each jurisdiction has its own Supreme Court responsible for handling Probate matters. It’s essential to know the specific requirements and processes for the jurisdiction in which the deceased resided which can be viewed on the respective Supreme Court website.
The Role of an Executor
The Executor is a person named in the Will responsible for applying for Probate, managing the deceased person’s estate, and ensuring the distribution of assets in accordance with the Will. If the deceased did not appoint an Executor or if the Executor is unable or unwilling to serve, a Court-appointed Administrator may be appointed to handle these responsibilities.
Applying for Probate
To begin the Probate process, the Executor (or administrator) must file an application with the Supreme Court of the relevant State or Territory. This application should typically be accompanied with copies of the following:
- a completed probate application form
- the executed Will
- a copy of the death certificate
- an inventory of the deceased’s assets and liabilities
- affidavits from the executor and witnesses
- an affidavit of the due execution of the Will.
The Court will review these documents to ensure the Will is valid and that the Executor is the appropriate person to administer the estate.
Challenges and Contests
In rare occasions, a Probate application may be challenged. Common reasons for contesting Probate include:
- Undue influence – If someone believes the deceased was coerced or manipulated into creating or amending their will.
- Lack of capacity – If it is alleged that the deceased lacked the mental capacity to create or update their will.
- Invalid execution – If the will was not executed correctly, such as not signed in front of witnesses or without proper formalities.
- Forgery – If there is reason to believe the will or any signatures on it are forged.
Challenges can complicate and lengthen the Probate process and may require legal resolution. To avoid these issues, please see our FAQs and other articles regarding capacity and valid execution of a Will.
Processing Probate
Once the Court is satisfied that the Will is valid and the Executor (or Administrator) is suitable, the Court will grant Probate. Once Probate has been obtained, the Executor can start managing the estate. This involves tasks such as gathering assets, paying debts, and distributing the remaining assets in accordance with the Will.
Taxes and Costs
Estate taxes, including Capital Gains Tax, may apply to the deceased person’s assets. The Executor is responsible for ensuring that these taxes are paid, generally using funds from the estate. Legal fees, Court costs, and other expenses may also be deducted from the estate.
Conclusion
Probate plays a vital role in honouring the wishes of the deceased and ensuring a fair distribution of their assets. The Probate process ensures the orderly distribution of a deceased person’s estate. It involves validating the Will and granting authority to the Executor (or administrator) to manage and distribute assets.
While the process can be straightforward, it can be time consuming for the Executor and may involve complexities, such as challenges to the Will or taxation issues. Executors and administrators should consider consulting a legal professional to navigate the Probate process.
Understanding the State and Territory specific requirements is essential to avoid delays and complications.
