Probate – What is probate?

Before a person’s assets can be distributed after their death, the executor may need to apply to the Supreme Court for a grant of Probate.

A grant of Probate is the court’s approval of a person’s Will as their last Will. Once it has been obtained, the deceased’s assets can be distributed in accordance with it.

The Probate is used to access estate assets such as bank accounts and to sell shares and real estate.

If an estate consists of real estate it is only necessary to get Probate if the real estate is not held as joint tenants with another party. If the property is held as joint tenants, title in the property will pass to the surviving joint tenant/s without the need for Probate.

In a small estate where there is no real estate to deal with, the bank account funds are less that $20,000 (depending on the bank requirements) or share portfolios do not exceed $15,000 (again depending on individual requirements), it is generally not necessary for a grant of Probate to be obtained. The executor may however be required to sign indemnity forms with the banks, institutions etc confirming their right to deal with the assets.

An application for a grant of Probate is made up by an Affidavit of Executor, which sets out information about the executor/s, the deceased and the Will.

Annexed to the Affidavit are the death certificate, an inventory of assets and liabilities, an extract from a local newspaper showing the notice of a proposed application for a grant of Probate and the original Will.

When the executor is satisfied that the Affidavit is correct, the executor must sign the Affidavit and its annexures in the presence of a solicitor or a justice of the peace.

The Affidavit of Executor together with a summons and a filing fee is then lodged with the Probate Division of the Supreme Court. If the Court has any questions about the application, it will issue requisitions (questions), which are required to be answered before a Grant of Probate can issue.