Giving you comfort around how probate works
11 May 2021
Being appointed the executor of a will is an honour. After all, it’s basically a loved one saying to you that they trust you to help make sure that, after they pass away, their wishes will be played out the way they imagined. This usually involves administering a loved one’s estate as written in their will, by collecting and checking that any debts are paid and distributing assets to the nominated beneficiaries.
Another task that some executors may need to perform is applying for a ‘grant of probate’. This is a legal process that may sometimes be necessary to prove that your loved one’s will is legally valid and that you have the authority to execute it.
Here, we delve into many aspects of probate, including when it might be needed, what to expect of the process and how long it takes.
Sometimes, in order to execute a will, you may need to undertake a process called probate. This may involve applying to the Supreme Court in your state or territory - NSW, QLD, WA, VIC, TAS, NT, SA - , in order to have the will registered and proven to be legally valid.
If your application is successful, the Court may provide a ‘grant of probate’. This indicates that the will is valid and that you, as executor, can go ahead and follow your loved one’s instructions, as expressed in their will.
When do you need to consider probate?
When a loved one passes away, you may want to start working out whether or not a will was left behind.
If there is no will, your loved one may be described as having passed away ‘intestate’. If you, as next of kin, believe that you should administrate your loved one’s estate, you may need to apply to gain legal permission to do so. If you successfully gain permission, you may be expected to distribute your loved one’s assets in keeping with the rules of intestacy, as specified by your state or territory - NSW, QLD, WA, VIC, TAS, NT, SA.
If there is a will, the next step may be to figure out whether or not a grant of probate is needed. Generally, there are at least three scenarios that may give rise to the need for probate.
Scenario #1: Probate and how a property is owned
Probate would not be required for any of the deceased’s assets if they are held as ‘joint tenants’ (which means the property is owned jointly with no specific part of the property owned by one individual). The surviving joint tenant would automatically acquire ownership of the deceased’s asset upon their death. However, a grant of probate may be necessary if your loved one’s will includes property that is not jointly owned under joint tenants, for example if a property is held as ‘tenants in common’ or independently. Tenants in common is when you own a percentage of the property, rather than holding it jointly. Upon the loved one’s passing, their share of the property will form part of the estate and will be dealt with according to the will, rather than being automatically passed on to the other tenant in common. Simply, if a property is owned as anything other than joint tenants, it will require probate. To find out if this is the case, you could consult a lawyer or track down the title deed of the property.
Scenario #2: Probate when asset ownership is involved
You may need to apply for a grant of probate if the will includes assets that:
— are held by an organisation, such as shares or funds held in a financial institution or funds held by a nursing home; and
— are of a certain value (or higher) that the organisation which holds the assets determines as the threshold for probate. This threshold varies from one organisation to another, so to find out what threshold applies to your loved one’s assets, it could be a good idea to contact the organisation that holds the assets in question.
Scenario #3: Probate and disagreements over the validity of a will
The need for a grant of probate may become evident if there is disagreement about whether or not the will is valid. Disagreements may emerge for a variety of reasons, such as the belief that the loved one, when writing the will, was not sound of mind or was unduly influenced. This may lead to, or include, a contestation of the will.
Making an application for a grant of probate may involve a lot of time and effort, so before going ahead, it could be a good idea to find out whether or not it is necessary. It may be possible that as the executor of the will, you can gain legal access to the loved one’s estate by providing particular documents, such as original copies of the will and death certificate, when you apply for probate, which must be done via the Supreme Court in your state or territory.
Making an application for probate
Usually, an application for probate is made by the executor named in the loved one’s will. If the will does not mention an executor, the task may fall to the next of kin, who before looking into whether or not probate is necessary, may need to make an application to become administrator of the will via the Supreme Court.
If you decide to go ahead with applying for probate, you can do so yourself or through a third party, such as a lawyer or trustee company.
The first step would be to get together the paperwork you need, including the will and death certificate, as well as documentation that details your loved one’s assets. There’s also an application form, which can be found on the Supreme Court website in your state or territory - NSW, QLD, WA, VIC, TAS, NT, SA.
The next step would be to submit the completed forms and paperwork to the Supreme Court, and pay any relevant fees.
Application and waiting times for probate
Once you’ve made an application for probate, you may expect to wait a few weeks or longer for your application to be processed.
The waiting period varies, depending on which state you live in, as well as other circumstances. The Queensland Courts website, for example, states that once the application is filed, the grant should be ready in approximately four to six weeks. If your application is particularly complicated or contains mistakes, then more time may be needed.
Probate and life insurance claims
If you are the valid beneficiary of your loved one’s life insurance policy, the benefit can usually be paid directly to you, which can give you access to funds quickly, and also means it may not be necessary to apply for a grant of probate.
Things can become more complex if no nominee has been named. This may give rise to the need for the executor of your loved one’s will to make an application for a grant of probate. As mentioned, applying for probate can be complicated and time-consuming, which is why it can be a good idea for any holder of a life insurance policy to think about nominating a beneficiary while in good health, mentally and physically.
It can also be important to remember that, most of the time, life insurance isn’t part of an estate. If you’re the beneficiary, this can be useful, because it can allow you to gain access to a benefit payment quickly, helping to protect you from any financial strain that may be caused by the loved one’s passing away.
Life insurance can help provide a financial safety net for loved ones through a lump sum payment. Suncorp Life Insurance, offers cover for up to $1.5 million and can help to cover a variety of expenses, including personal debts, daily living costs, school fees and more. With some policies, your loved one may be able to access an advance payout of up to $10,000, which can help them with upfront expenses, such as legal fees.
Another way to help protect your family from financial strain is funeral insurance, which can provide a lump sum that can go towards funeral costs, as well as other unexpected expenses.
Suncorp Life Insurance offers a range of different life insurance products to suit your needs, lifestyle and budget. Get a Life Insurance online quote within minutes, or use the Life Insurance Calculator to help calculate the right amount of cover for you and your family.
If you have any questions about the kind of Life Insurance policy to best suit your needs, you can talk to our Suncorp Life Insurance specialists on 13 11 55.
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Information within this article is believed to be accurate as at 29 April 2021, but may be subject to change.
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