Probate of a Will – When Is Probate Necessary

There are a lot of emotions involved when it comes to death, and it can be a struggle to understand the ins and outs of the legal jargon if you’re an executor. From the concern over will estate disputes to dealing with estate litigation lawyers and all the technical terms that seem to come with the process – it’s complicated. 

Probate is the term used to describe the legal validation of a Will. 

The process empowers the executor to move forward with managing the estate, which means distributing assets based on the Will filed with their Will and Estate Lawyers. 

When is Probate Necessary? Not Every Estate Needs It

For some reason, a lot of people believe probate is a necessity following the death of a loved one. That isn’t the case; the process depends on the value of the deceased’s assets and the nature of those assets as well. 

For example, if the deceased was the sole account holder over a bank account, the bank will likely ask for a grant of probate before they allow the executor to access the funds in the bank account. Even then, it’s only for values over a certain amount, which typically varies across financial institutions. 

Additionally, if the deceased holds shares in a company, they may request the grant of probate. Or if the deceased was the sole owner of a property. When two people are named owners, their share would simply transfer to the second person. 

Scenarios Where Probate is Likely Required

• Land or Property: Land or property is only an issue that demands probate in a sole ownership situation. 
• Financial Accounts: Every financial institution has its own rules, but there is always a threshold in place that will require a grant of probate for the executor to access financial accounts. 
• Shares and Investments: If the deceased had sole ownership over shares and investments, probate is likely required to transfer ownership to the relevant beneficiaries. 
• High-Value Assets: Probate is likely required for estates with a total asset value that exceeds the state’s threshold. 

Scenarios Where Probate Might Not Be Necessary 

• Joint Ownership: In a joint ownership situation, the asset will likely pass to the surviving owner, which allows you to avoid probate. 
• Low-Value Assets: As long as you have a death certificate, most financial institutions allow the executor to access accounts below a certain threshold, which varies across the spectrum. However, $50,000 is a common threshold for many banks.
• Beneficiary Nominations: It’s possible to avoid probate by relying on beneficiary nominations. This process allows someone to nominate a beneficiary for varying assets, including superannuation and life insurance. This is also an excellent way to prevent will disputes. Many people underestimate how messy things can get after their death, so writing an airtight Will helps to avoid anyone contesting a Will and disrupting family harmony. 

The Probate Process in Australia

It’s the executor’s responsibility to apply for the grant of probate, and while the steps vary state by state, there are a few key steps involved in the typical probate process. 

• Applying for a Grant of Probate

Before you can file for probate, you need to submit a notification declaring your intent to act as the executor for the deceased, which will be displayed on the NSW website. 

You will need all the relevant documentation, and once the notice is submitted, you have to wait 14 days before you can apply for the grant of probate. The probate fee depends on the value of the estate. 

• Gathering and valuing assets

You need to get to grips with all of the deceased’s assets; this should be clearly outlined in the Will. However, there may be assets within their properties that are not listed within the Will. The deceased estate lawyers may be able to guide you if you’re unclear. 

• Paying any outstanding debts and taxes

You cannot distribute assets until you have addressed any relevant taxes and outstanding debts. 

• Distributing assets to beneficiaries 

Once everything is settled, you can start distributing assets. There is a 12-month time limit for challenging a Will, which can complicate the process. 

Seek Professional Help 

It’s always best to seek legal advice from a lawyer who specialises in estate law, whether you’re certain probate is necessary or not. A lawyer can help guide you through the process to ensure it’s all completed correctly and the process runs smoothly. It’s a complex process, but when it’s intertwined with grieving, it can be even more difficult to manage. 

Alternatives to Probate

Letters of Administration

If there is no Will in place or the named executor cannot act as the executor, Letters of Administration may be issued. The Supreme Court issues Letters of Administration to appoint a new executor to administrate the Will, and this bypasses the probate process. 

Small Estate Procedures

If the deceased only has a small bank account, a car, and material possessions, there’s a good chance probate is unnecessary. In these situations, the death certificate is more than adequate to administer the estate. 

Final Thoughts

For low-value estates and joint ownership properties, probate is avoidable, but if you’re dealing with a high-value estate, it’s more than likely probate is necessary. It’s always useful to reach out to a legal professional the moment you recognise probate is necessary for the estate you’re administering. It’s also valuable to have specialists involved if you suspect someone has plans to challenge the contents of the Will or contest its validity. A team like AJB Stevens can help you navigate the situation, whatever may come up.