When a loved one passes away, it is usually an already difficult and emotional time. It can be even more stressful for those looking after the deceased person’s estate if they don’t understand what a Grant of Probate is.
There are certain steps that may be required in order to take care of a deceased person’s finances. You should understand the process of Probate and estate administration if you are estate planning and making a Last Will & Testament, or if you are executing or administering a deceased person’s estate.
When someone dies, an Executor of a Will or an Administrator steps in as a caretaker of the deceased person’s estate, which includes any assets like money and property. If there is a valid Will, the Executor takes ownership of the deceased estate and for distributing the assets to beneficiaries in accordance with the Will. If there is no Will, an Administrator will be appointed by the Supreme Court to manage the deceased estate.
This article explains the Grant of Probate process in more detail. It is broken down into the following sections:
- What is Probate?
- How does a Grant of Probate work?
- Do I need to apply for a Grant of Probate?
- How do I apply for a Grant of Representation?
- When should I seek legal advice?
- Final thoughts on Grant of Probate
1. What is Probate?
Probate is a legal process required before a deceased person’s estate can be distributed to any beneficiaries.
There are two types of grants:
- Probate - where there is a Will (testate); and
- Letters of Administration - where there is no Will (intestate)
Grant of Probate
Once Probate has been granted, the Supreme Court issues a document confirming that the Will is valid and also confirms the appointment of the Executor. You can find out more about the duties of an Executor of a Will here.
Grant of Letters of Administration
Where the deceased person died without a valid Will, known as dying intestate, someone (usually the closest surviving Next of Kin) will need to apply to the Supreme Court for a grant of Letters of Administration. The Letters of Administration grant the legal authority for an Administrator to manage and distribute the deceased estate.
Collectively a Grant of Probate and Letters of Administration are called Grants of Representation. If awarded, a Grant of Representation gives an Executor or Administrator the legal right to manage the estate of a person who has died.
2. How does a Grant of Probate work?
A Grant of Representation allows the assets to be transferred to the name of the Executor or Administrator so they can manage them: distribute them to beneficiaries, or sell them. Without the Grant of Representation, assets cannot be distributed to any beneficiaries.
A Grant of Representation is needed before a deceased estate can be distributed to any beneficiaries. A Grant of Representation also allows the assets to be transferred to the name of the Executor or Administrator so they can manage them: distribute them to beneficiaries, or sell them.
While the application is being processed, the deceased person’s bank accounts will generally be frozen until the Grant of Representation is obtained. In cases where Probate is not required, the bank may simply request certified copies of the death certificate and the Will (if there is a Will) and for the Executor to sign an indemnity before releasing the deceased’s funds.
3. Do I need to apply for a Grant of Probate?
The Executor or Administrator of the estate is responsible for collecting the deceased person's assets and pay any debts, then distribute any assets to the beneficiaries. So, the Grant of Probate allows the representative to request that anyone that currently has assets of the estate that are holding bonds (like a bank or retirement village) to transfer those assets or monies to them.
A Grant of Probate is generally only needed if the deceased person’s bank account was over a certain amount. For small estates, a copy of the Death Certificate and the Will may be enough to release the funds to the Executor. The threshold can vary between banks, so check with the individual financial institution to determine its policy on Grants of Probate to determine if you need to apply for one.
You generally won’t need a Grant of Probate if the deceased person is survived by a joint account holder or joint property owner, as the estate will commonly be transferred to them.
4. How do I apply for a Grant of Representation?
The process differs depending on the state or territory, but generally when applying for Probate, you will need to complete a number of forms and provide documents such as a Death Certificate.
If either a Grant of Probate or Letters of Administration are required, you will first need to publish a statutory notice of your intention to apply for a Grant of Representation with the Supreme Court in the relevant state. This will allow any creditors and family members owed money by the deceased estate to make a claim. It also allows any other nominated executors, or anyone who may have another Will to discuss the intended application.
The Executor or Administrator will need to prepare the relevant documents for submission, then apply to the Supreme Court in the relevant state or territory. You can find out more with the following links:
- New South Wales
- Western Australia
- South Australia
- Northern Territory
5. When should I seek legal advice?
If the deceased person died intestate (left no valid Will), or a dispute between multiple nominated Executors has arisen, seeking legal advice or consulting with an estate administration specialist is advised.
As an Executor or Administrator, there are different obligations and duties you must adhere to. It is best to always seek advice if you are uncertain of how to proceed or administer the deceased’s estate.
6. Final thoughts on Grant of Probate
We hope this article provides a better understanding of Grants of Representation and where a Grant of Probate or Letters of Administration are needed.
To learn more, visit the Bare Law website or chat with our estate team for a free consultation, on (03) 9917 3388.
This article is not legal advice. You should speak with your solicitor or accountant for specific advice on your personal or financial situation.