What is probate and do you really need it?

A Grant of Probate is the Supreme Court’s recognition that a Will is legally valid. It gives the executor authority to perform their role and administer the estate.

It is not always necessary to obtain a Grant of Probate when dealing with a deceased estate. You should discuss the assets and liabilities of the estate, and any potential claims against the estate with a solicitor to work out whether or not a Grant of Probate is required.

The main reason that a Grant of Probate is required is that many organisations/entities that hold the deceased’s assets (e.g banks) or record the title to the deceased’s assets will not release the assets or transfer the assets to the beneficiaries unless they are provided with a certified copy of a Grant of Probate obtained from the Supreme Court. Retirement villages/nursing homes will almost always require a Grant of Probate to release the deceased’s exit entitlement/refundable accommodation bond.

There are some circumstances in which you do not need to obtain a Grant of Probate. Some of these circumstances are:

  1. If property is held as joint tenants with another person (as opposed to tenants in common). It is common for people to own property as joint tenants with their spouse. If property is held as joint tenants, the asset will automatically pass to the surviving joint tenant;
  2. If the only assets of the estate are of very low value (eg bank accounts, shares). Each financial institution has a threshold amount as to the value that can be released without a Grant of Probate being obtained.

To identify whether a Grant of Probate is required an executor should;

  1. Identify the assets and liabilities, including the name in which they are held and their values;
  2. Identify if there are any assets held as joint tenants;
  3. Contact financial institutions to determine whether the estate is above or below the threshold amount at which point a Grant of Probate is required (this varies between financial institutions);
  4. If you are not sure if you need a Grant of Probate, seek legal advice; and
  5. Obtain a Grant of Probate.

We can help you quickly identify whether you need to obtain a Grant of Probate, or whether you do not need to go to that time and expense.

If you do require a Grant of Probate or require advice in relation to the administration of an estate, please contact us on 07 3808 7777 or send us an email at business@mclaughlinlawyers.com.au

Written by Samantha Vickery, Senior Associate, Mclaughlin & Associate Lawyers 

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