In this article, we cover applying for probate in Australia, its necessity, as well as the coverage for probate applications.
Not necessarily.
The main reason that probate is required is that some organisations which hold assets of the estate will not release them to the executor(s) for distribution without the sighting of a Grant of Probate. You will need to make a list of everything the deceased owned or was entitled to. Then, make contact with the financial institutions concerned to establish whether they require a Grant of Probate. This will be more relevant for smaller estates. For larger estates comprising real estate, probate will almost certainly be required.
The Land Titles Offices in all States and Territories will always require a Grant of Probate if the home or land to be distributed under the will is in the deceased’s name only. If the deceased person owns land as a joint tenant, probate will not be required. Thus, the property will automatically revert to the other person (surviving joint tenant) (for example, the spouse of the deceased). Transfer of the title from joint names, or solely in the name of the deceased, into the name(s) of the beneficiaries will be required.
Financial institutions have varying rules which will allow access to the deceased’s accounts without a Grant of Probate if the estate is small. We recommend you make an enquiry of the financial institution regarding any accounts containing any more than $20,000. The general cut-off is commonly $50,000, but this will vary from institution to institution.
The Roads and Traffic Authority, or your State equivalent, will not require a Grant of Probate but will need sight of original documents. This includes a certified copy of the death certificate, a copy of the will, a letter from the executor, proof of identity, the certificate of registration. The completed application for transfer to transfer the registration of the deceased’s vehicle.
Retirement villages and nursing homes with whom the deceased had lodged an accommodation bond will require a Grant of Probate before they release the bond to the executors. Please be aware that the decision to release the bond is not at the discretion of the home. Rather, it is based on the legislation that regulates the industry. However, sometimes, the home may be prepared to issue a bank cheque made out to “the estate of [name of the deceased].” This cheque is non-negotiable. This may only then be deposited in the deceased bank account, and therefore, subject to the restrictions placed on the account by that bank.
In our experience, if shares are held in an account in the sole name of the deceased and valued at over $2000, the Grant of Probate will be required to release the shares for distribution by the executor.
The executor should contact the share registry of the company concerned. Alternatively, they can contact Computershare Investor Services to ascertain the number and value of shares held and whether the Grant of Probate is required for distribution.
You will need to contact the institution concerned. Then, enquire whether they require the Grant of Probate to release the funds to the executor for distribution. Some types of policy will include provision for a named beneficiary in the event of the death of the policyholder. Therefore, it may not be covered by the will. The Trustee of the fund will have the discretion to pay the death benefit to any person nominated as a beneficiary in the super fund of life policy. Also, they can make the payment to the estate of the deceased, and be subject to the terms of the deceased’s will.
Each State has its own laws governing wills and the application for probate. Applications are filed at the Probate Office of the Supreme Court in each relevant state. The time from submission of your application to the Grant of Probate varies between states and the number of application that the Probate Registry receives at any time. Expect 2 weeks to 2 months.
In general, a will in order to be valid needs to comply as follows:
In some limited circumstances, the Supreme Court may recognise a will if there has not been strict compliance with the rules set out above. Expert legal advice is needed and every care must be taken not to have the problem occur. There is no guarantee that the Court will excuse any failure to comply and in such circumstances, the Will will be deemed to be invalid.
In such circumstances, please contact AussieLegal on 1300 728 200 to discuss your situation.
Where there is more than one will, it is the one made last that is the one you apply for probate of. Generally, a subsequent will contain a provision revoking all previous wills. If you have any queries about whether a document is or is not, a will seek expert legal advice.
There is no special qualification needed for a person to be a witness. Any person can be a witness. The important thing is that the person understands that he/she was being asked to be a witness to the will. The witness should not be a beneficiary named in the will, the husband or wife of a beneficiary of an executor.
If the will was executed in a foreign jurisdiction, it was taken to be properly executed. Therefore, legally valid in Australia, if its execution conforms to the law in force, either:
A legally valid foreign will would enable the executor(s) to apply for probate to distribute the assets in the state in which the asset was located or held.
The deceased may have assets of value in another State. In these circumstances, the law of that State would apply. All the Australian States and Territories have provisions under which a Grant of Probate made in another State or Territory can be “resealed”. Resealing means certification by a competent probate authority and avoids the need to obtain a fresh Grant of Probate in a different jurisdiction. A foreign executor seeking authority to deal with assets held in Australia would need to have the Grant made abroad resealed in the State or territory where the assets are held.
Yes. Some of the types of assets can be quite substantial and may underpin the entire basis on which the will was drafted. Care therefore needs to be taken to understand what assets are not automatically covered by a will.
Jointly owned assets are one such class of assets to be aware of.
For example, let’s suppose that the testator had a joint account with a brother. Each put $500.00 into that account. The testator wanted his $500.00 in the will to go to his spouse. Because it is a jointly owned asset, there is what is called “a right of survivorship” that goes with that joint ownership.
On his death, the $500.00 vests automatically in the brother. As far as the will is concerned, it is as though he did not own that $500.00 at the date of his death. That gift in the Will will fail. In the same way, if the brother died, his $500.00 would vest in the testator no matter what the brother’s will said.
Other assets may also be jointly owned. For example, household chattels and furniture are often jointly owned by a spouse. Other investments can be in joint names.
If the testator owned a house or a real estate with another person, the Title will spell out whether they owned as joint proprietors (also called “joint tenants“) on the one hand or as tenants in common on the other. If they were registered as joint proprietors, it is exactly the same as the bank account situation already described.
No matter what was put in the will, the testator’s share would go to the other co-owner. If, on the other hand, they were registered as tenants in common, then the share would be governed by the will and can be left to whomever the testator chose.
Another type of asset that the Will will not automatically govern is superannuation.
The rules governing most superannuation funds provide that the fund has a discretion where it pays the accumulated superannuation benefits to. The fund may pay it:
It is only if the fund pays it to the estate that it becomes an asset that the will can govern. If the will provides for various gifts based on the assumption that the estate will have the benefit of the superannuation, the entire framework of the will can be undermined if the Fund decides instead to share out the benefit directly between the spouse and the children.
Most Superannuation Funds provide you can give them directions on how you want the Fund benefit paid out. This is done by filling out what is called “a nomination form.”
In the past, such nominations were just one factor for the fund to take into account and were not binding on the fund. The law has changed and some funds may now be given binding declarations. You will need to talk to the specific fund in this regard to find out.
Sometimes these are owned by the testator in his/her own life. Sometimes these are owned by somebody else (i.e. a spouse) on the testator’s life. In the latter case, it is not an asset of the estate and will be paid directly to the spouse.
The testator may own shares in a company, but the company owns the house or the car or various investments. Those items cannot be given away because they are owned by another entity (i.e. the company).
In the same way, if assets are held by a trustee pursuant to a family trust, that asset is not the testator’s dealing with easily with the will.
The answer to that is, in some circumstances, yes.
A will may be challenged in two (2) ways.
First, the Will can be challenged when the will itself is invalid. This may happen when the testator’s mental incapacity is at the time of making the will. Another is when undue influence being exerted on the testator. These are usually not problems when the will has been made for the testator by lawyers but can sometimes crop up with homemade wills.
Second, although the will itself may be valid, certain people close to the testator may have a right to claim on the Estate if the terms of the will cannot make adequate provision for them.
If there are relatives, spouses, former spouses, de facto spouses, past or present dependents or any other people who relied on the testator in the past for financial or personal support, those people may challenge the will in Court unless appropriate provision was made for them. The question is whether the will makes adequate provision for the proper maintenance and support of that person.
In determining whether to give such a person any of the property of the estate, the Court considers what a reasonable testator would have done.
Some people think that as long as some gift is made (i.e. $50.00) that will suffice. It won’t. The provision must be adequate for the proper maintenance and support in the circumstances. Token gifts do not remove the will from the threat of challenge if the testator had a responsibility to make provision for the person.
If you think that such a claim could be made against the estate, obtain specialist legal advice and not run any risks.
In a similar fashion to an application for a Grant of Probate, in certain circumstances, it is not possible to obtain probate. An alternative is to apply for Letters of Administration. This is typically done under the following circumstances:
Please contact AussieLegal on 1300 7282 00 to discuss our Letters of Administration service:
https://aussielegal.com.au/product/letters-of-administration-au/
This can be the case where one or more of the named executors have predeceased the testator or are elderly and unwilling or otherwise not available to apply for probate. There is provision for an application to be made for Letters of Administration with Will Annexed. Any person with an interest in the estate can make this application.
An invalid will is one in which there is a deficiency of one or more of the points made above which define a valid will. Probate cannot be granted in such a case. However, the Court will give Letters of Administration with Will Annexed to an executor named in the will. This enables the administration of the estate of the deceased.
The applicant may be the person nominated in the will or document stating a testamentary intention as the executor if that has been done, otherwise any person who has an interest in the affairs of the deceased may apply for Letters of Administration.
Partial intestacy occurs where there is a will, but it does not deal with all the assets of the estate. In this case, an application for a Grant of Probate is made generally by the executor named in the will and the assets which are included in the Will are dealt with according to the will and those assets not included are disposed of to the beneficiaries according to the rules of intestacy.
Where a person has died and not left a will, they are said to have died “intestate”. In this circumstance, Letters of Administration may be sought from the Court by anyone with an interest in the affairs of the deceased. They can be anyone with close ties to enable the distribution of the assets of the deceased. The court-appointed administrator will hold the assets of the deceased on trust to be distributed according to the rules of intestacy in the applicable State. All Australian jurisdictions now provide fixed lists which must be followed in determining the distributions of an intestate’s estate.
NSW: Aussielegal.com.au/applying-for-letters-of-administration-in-nsw
VIC: Aussielegal.com.au/applying-for-letters-of-administration-in-vic
QLD: Aussielegal.com.au/applying-for-letters-of-administration-in-qld
SA: Aussielegal.com.au/applying-for-letters-of-administration-in-sa
WA: Aussielegal.com.au/applying-for-letters-of-administration-in-wa
TAS: Aussielegal.com.au/applying-for-letters-of-administration-in-tas
ACT: Aussielegal.com.au/applying-for-letters-of-administration-in-act
Yes, you can make a ‘personal application’ rather than have a law firm act on your behalf. You can save many thousands of dollars and be in control of the process. AussieLegal has assisted thousands of people with successful personal applications for probate in all States and Territories in Australia.
AussieLegal offers a number of legal kits and paralegal services. These kits are specifically designed to help family members make a personal application and save thousands in legal fees.
Reach out on 1300 728 200 to discuss your situation with one of our consultants.
