Probate is the process of proving the validity of a Will to the Supreme Court. The Executor named in the Will is responsible for applying to the Supreme Court for a Grant of Probate.
In general, the Executor cannot deal with the Estate assets without a Grant of Probate. However, it depends on the types of assets in the Estate.
A Grant of Probate is usually required if the Estate includes:
a) land owned in the deceased’s sole name or as tenants in common with any other person;
b) bank accounts with balances over about $10,000 (the threshold varies for each bank) held in the deceased’s sole name;
c) shares in the deceased’s sole name with a market value more than $15,000; and
d) superannuation benefits.
A Grant of Probate is not usually required for the Executor to be able to deal with:
a) assets in the joint names of the deceased and any other person – these assets will automatically pass to the survivor;
b) shares in the deceased’s sole name with a market value of less than $15,000;
c) land owned by the deceased as joint tenants with any other person;
d) bank accounts with balances less than about $10,000 (the threshold varies for each bank);
e) motor vehicles in the deceased’s name; and
f) personal effects and household items.
Which Supreme Court?
The Supreme Court of each State has the power to issue a Grant of Probate if the deceased owned assets located in that Court’s geographical jurisdiction.
The Executor should apply to the Supreme Court in the State where most or all of the deceased’s assets are located. If the deceased owned assets in multiple States, then the Executor should apply for a Grant of Probate in the State in which the majority of the assets are located, and then apply for a “reseal” (recognition) from the other States.
Before applying for a Grant of Probate, it is important for the Executor to understand:
a) what the deceased owned;
b) how much each asset was worth as at the date of death;
c) where the asset is located; and
d) how the deceased held their assets (jointly or solely).
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.