What is Probate?
A Grant of Probate is an official recognition by a Court that a Will is legally valid.
Do I need to apply for Probate?
In some circumstances, it is necessary to make an application for a Grant of Probate. For example, an application for a Grant of Probate may be required when there is a dispute with respect to the provisions of the Will, or if an institution such as a bank or insurance company requires that probate be obtained prior to releasing funds to the estate.
In some circumstances a Grant of Probate is not required (eg. if an asset such as a home is held in joint names, it will be automatically transferred to the surviving joint owner). It is important to always check with the organization that you are seeking to obtain money from as to whether or not they require a grant of probate.
It should however be noted that obtaining a grant of Probate can give a personal representative protection under s54(4) of the Succession Act, which states:
“A personal representative who in good faith and without negligence has sought and obtained a grant is not liable for any legacy paid or asset distributed in good faith and without negligence in reliance on the grant notwithstanding any subsequent revocation thereof.”
Each situation varies, so we would recommend obtaining advice from a Solicitor.
Who applies for Probate?
The executor of the Will is the person entitled to apply to the Supreme Court for a Grant of Probate. The Court will only issue the Grant of Probate when it is satisfied that the Will presented to the Court is the last Will of the person that he passed away.
The executor may also be referred to as the personal representative.
How to apply for a Grant of Probate
To apply for a grant of Probate there are four (4) basic steps:
(a) original Will
The original Will and Death Certificate will not be returned by the Court. It is therefore very important to obtain a certified copy of the Death Certificate or obtain a duplicate original from the Registry of Births, Deaths & Marriages. A copy of the Will is contained within the Grant of Probate.
After a Court receives an application for a Grant of Probate the Court will consider the application and if satisfied will make an order for the Grant of Probate.
This process can take between 6 – 8 weeks to be completed.
Please contact Byron Cannon, Director should you have any queries on (07) 5443 6600 or
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