What is Probate

Probate is the legal process through which a deceased person's will is validated by a court and the executor named in the will is given the authority to administer the estate according to the wishes outlined in the will. The probate process involves proving in court that the will is valid, identifying and inventorying the deceased person's assets and liabilities, and posting a notice in the Supreme Court that probate is being applied for.

The death certificate and original will are required before applying for probate.

Without probate, banks, financial institutions, and other entities might refuse to release assets.

No distribution of assets should occur prior to the grant of probate. Probate provides legal protection to the executor. If assests are distributed before probate is granted, the executor can be held personally liable if there is a dispute. 

The probate process can vary depending on the jurisdiction and the complexity of the estate. In some cases, probate may be a straightforward process that can be completed relatively quickly, while in other cases, it may be more complex and time-consuming. In Australia, each state or territory have different processes, time frames and lodgement fees.

If the deceased held property in more than one state or territory or country, probate is normally granted in one juristriction and then may require that other juristriction to recognise that grant of probate (known as a "reseal").

It is important to note that not all assets are subject to probate. Assets held jointly, assets with designated beneficiaries (such as life insurance policies and superannuation¹), and assets held in a trust generally do not go through probate.

If you are involved in the probate process, it is recommended to seek the guidance of a legal professional to help navigate the process and ensure that everything is handled properly and in accordance with the law.

¹  depends on Death Benefit Nomination