Administration of a deceased person’s estate – proving the validity of a will
Probate is the official process to establish or prove, whether a deceased person’s will or testamentary document is valid and intended to be their last will.
A grant of probate is the document issued by the Court of Probate after the examination process. A type of grant of representation, it is an order of the Court certifying that the executor (or personal representative) named in the document is lawfully authorised to administer the estate of the deceased person.
A grant of probate is official recognition that the will (which may include codicils) was proved to be valid by the Court and intended to be their last will.
The Court has power to make a variety of orders in grants of representation including a grant of probate. With a grant the executor can then proceed to finalise the deceased estate,collect the property, pay debts, then distribute according to the terms of the will.
A grant of probate can only be sought in the state or territory where the deceased person owned property.
Is a grant of probate always required?
Not always, it depends on the size of the estate. And if not it can save considerable time and expense to the estate. Personal items such as furniture and household goods may be transferred to beneficiaries in accordance with the terms of the will in some situations. Factors to consider are the size of the estate, the value and nature of the property in it, debts of the deceased, whether the property would normally pass outside of a will, and how property was owned, can affect whether or not a grant is needed. But seek legal advice on the situation to be sure. Some general points follow.
Superannuation entitlements held in a trust are subject to the discretion of the trustee of the trust and whether or not the exercise of its discretion was to be affected by any death nomination left by the deceased. Generally speaking, funds are released to close family members without a grant of probate.
Life Insurance policies
Proceeds from a life insurance policy are normally distributed independently of a will and so a grant of probate should not be required. However this may be affected by the size of the policy, the owner of the policy, who may well be a spouse, partner or other dependent/s, and any directions left by the deceased as to whom proceeds should be paid to on death.
In small estates probate may not be necessary
When someone leaves a small estate in value, a grant of probate may not be required. Depending on the bank or financial institution’s policy, small amounts held in an account may be released to close family on presentation of a certified copy of the death certificate but without a grant of probate. Contact the relevant bank or building society to find out their policy and documentary requirements. Most have this information detailed online.
Small estates are those classified as having a minimal value of property. This value varies between states and territories ranging up to $100,000. Similarly each jurisdiction’s rules and procedures on finalising them without a grant of probate also varies. Contact the Probate Registry in the relevant state or territory where the deceased person lived to find information on the rules and procedures.
Where a small estate is required to have a grant of probate, some Probate Registries offer a small estates service, for example the Probate Registry of the Victorian Supreme Court, click here.
Any property owned jointly with another person, under a joint tenancy passes to the surviving owner/s without the need for a grant of representation (either by probate or letters of administration). This is because of the “right of survivorship” attached to a joint tenancy.
Problems with validity of the will
Where there may be an issue as to the validity of the will, or if the original will is missing or lost and a copy is resorted to, or the will is being contested for one reason or another, or other issues have arisen, it may be that the matter has to go before a judge of the Probate Court to be adjudicated. If this happens, the grant of probate issued by the Court is known as a Grant in solemn form.
If no contentious issues arise in the application process and it can be dealt with by the Probate Registry it is simply a grant of probate in common form. Most probate grants are of this type.
When the original will can’t be found – can a copy be used?
Unfortunately it happens that original will and testamentary documents such as codicils become lost or go missing. In some circumstances a copy of the original will (copy-will) may be admitted to probate.
Meaning of “will” – what does this includes?
Under succession and wills legislation reference to a “will” is defined to include a codicil (or amendment). A “will” may well include more than one document and includes any previous will document which has not been revoked (that is cancelled).
So in some cases there maybe a few documents all coming under the meaning of “will”, all of which need to be produced to the court for proof.
How long does it take to obtain a grant?
The time taken can depend on various factors such as
- statutory periods of advertising a notice of intending to distribute. In New South Wales this can vary from two weeks or more. An application for probate cannot be filed before this period has ended;
- whether anyone is disputing or challenging the will and wants to oppose a grant being made;
- work loads of the Probate Registry;
- whether the Registrar of the Probate Registry has requisitions on an application, and the nature of those inquiries.
- where you live, as the States and Territories are not uniform in their requirements. In South Australia a grant of probate won’t be issued by the Probate Registry before 28 days from the date of death.
Grants of representation
- A grant of probate is the grant of representation issued where there is a will, it is valid in all respects including the appointment of a personal representative, an executor, to carry out the administration of the estate.
- However circumstances may arise where the appointed executor cannot act or they may wish to renounce the executorship and their right to apply for probate. In these situations the replacement executor would need to seek approval from the Court by submitting an application for a Grant of Letters of administration with the will annexed. It may also be applicable in situations when someone has left an informal will.
- When a deceased has died intestate, that is without leaving a will or testamentary document, the procedure for the personal representative, called an administrator, to apply for a Grant of Letters of administration.
Who can make grants of representation?
In each state and territory it is the Probate Court which has exclusive responsibility (or jurisdiction) for this function, Probate Courts are a specialist division of each State and Territory Supreme Court. Find a list of links to Courts here.
Legalese: the word “probate” seems archaic, and in a sense it is.
It is a reminder that the law on finalising deceased estates originated centuries ago in Roman law, as the word “probate” originates from Latin, probatio and the like, meaning ‘approval; testing, tried’. Romans were concerned about many issues in inheritance and passing on their property to the right people, about their wills being forged, and began formulating a type of code with the Twelve Tables.
13 March 2015, Updated 22 January 2021.
© BHS Legal
Image: B Stead