There may be a period of confusion after the death of a loved one who has designated you as an heir. It’s natural to have questions regarding the probate process, including what steps you need to follow, how long it will take, how much money will be needed, and what the law states.
The probate process can be lengthy and complicated, but with some inquiries, you can obtain an idea of what to expect and do before and during the probate process.
The term ‘probate’ refers to the full procedure for handling the deceased person’s financial affairs. This entails settling their financial and debt affairs, as well as dispersing their assets and possessions to their beneficiaries.
A probate case involves the following legal matters:
- Determining the existence and validity of a will
- Identifying the people who stand to benefit from the deceased’s estate
- Assessing the value of the deceased’s possessions
- Paying off the decedent’s debts and meeting their other financial obligations
- Inheriting or receiving the deceased person’s property
Additionally, the judge will name an executor. The term ‘personal representative’ or ‘administrator’ is sometimes used to describe this role. This individual will manage the estate’s settlement and probate proceedings.
Starting The Probate Process
The application process for probate grants varies from state to state in Australia. If you’re uncertain of the law, it is in your best interest to contact your local court or an attorney.
In the meantime, here are some pointers on the probate process:
1. File A Probate Application
The first step in the probate procedure is the filing of a petition with the court to commence probate for the estate of a deceased person. Probate applications can be filed online, in person at the Probate Office, or by mail. Thus, either you or your attorney can apply for the grant of Probate in any of these ways.
Include a copy of the death certificate and the original Will with the petition. The probate can begin once the court has reviewed this document.
2. Send Out Notices Of Probate
All creditors, beneficiaries, and heirs must be informed that the estate is in probate, as required by the court. A newspaper or online notification may be required by law in some states.
Before you can file your summons for probate, you must wait at least 14 days after the date of publication. A caveat (objection) can be filed by anyone who believes they have a right to something from the estate. If they can prove their case in court, the probate won’t be granted until the claim is settled.
3. Make A List Of Assets
Create a complete list of probate assets and submit it to the court. This includes, but is not limited to:
- Real estate
- Collections (paintings, jewelry)
Items like clothing, electronics, and home furnishings are examples of personal possessions that typically do not have titles. These also fall under the purview of the probate court and must be included in the inventory submitted to the court.
4. Wait For The Grant of Probate
Once the application is approved, the Court will issue a Grant of Probate. This document serves as both proofs of the executor’s authority and as the passport necessary for the executor to conduct business with third parties in the process of their Estate administration responsibilities.
5. Distribute The Assets
The executor will start distributing the assets of the estate to the beneficiaries in accordance with the terms of the Will.
Applicants who submit their probate petitions six months after the decedent’s death date must provide the court with an explanation for the delay.
Lawyers may be consulted at any time during the probate procedure for advice. They may assist or even assume your role as executor if legal challenges are impeding your progress.
Frequently Asked Questions (FAQs)
Do Super Funds And Life Insurance Require Probate?
Like bank accounts and shares, super accounts and life insurance claims may require a grant of probate. Life insurance is normally not part of an estate, and there are usually precise instructions about who will receive the benefit.
Some insurance companies and retirement funds need more detailed documentation from claimants, while others accept simple forms of documentation. Healthcare records, birth certificates, and death certificates are examples of such official documents.
How Long Does It Take To Probate A Will?
Probate grants may be obtained in 20 business days if all the necessary court paperwork is filed on time. If court documents are missing information or are unclear, the probate process will be prolonged.
The Supreme Court will likely request additional information and then proceed with the probate processing once it has received all of the necessary documents. There are many potential causes for a lengthy probate process, including:
- Challenges to the legality of a Will or individual bequests within it
- Assets that are more ‘complicated’ like when there’s a dispute concerning the deceased’s assets
- The involvement of yet another government agency where a taxable estate is required
Because of the many factors at play, the time it takes to be granted probate differs.
What Are The Costs Associated With The Probate Process?
- The cost of publishing a Notice of Intention announcing your intent to seek probate for 14 days
- The court’s filing fee, which is due when your probate application is submitted
- The cost incurred to pay the firm or individual who handles the probate application paperwork on your behalf
The cost is highly variable depending on the location of the deceased’s assets.
When Is Probate Not Needed?
Though probate is normally needed to manage an estate, there are exceptions. Irrespective of the circumstances, a Grant of Probate is not required in the instances listed below.
- The value of the deceased’s estate is considered small
- The decedent had shared ownership of the property
- The nomination is legally binding as in the case of Super & Life Insurance
- A Will is not present
Most executors will need to go through probate when a loved one dies and leaves behind property, assets, and debt. This is because the people and organizations who possess the deceased person’s assets need to see proof of who is authorized to manage the estate.
Knowing what probate is and the process involved is crucial for both the person writing the will and the person carrying it out. If you aren’t sure what paperwork you need to hand over an estate, it’s important to ask for legal advice and be as detailed as possible in your will about your assets.