What is Probate?

Before the estate of someone who has died can be distributed, the person or people who are going to carry out the will's bequests must apply through court for the legal authority to do so. This is called a grant of representation. It gives one or more people the legal authority to manage the estate.

There are three different types of grant of representation:

• Probate: If an executor is named in the will, they must apply for probate.
• Letters of administration: If there is no valid will, the court will grant letters of administration to an appropriate person, usually a beneficiary.
• Letters of administration with the will annexed: If there is no named executor in the will, or if the named executor wishes to renounce their role, the court will grant letters of administration with the will annexed. Usually this is granted to an appropriate beneficiary of the will.

If you have been named as the executor, you need to be granted probate before you can start managing the estate according to the will. Managing the estate includes giving out inheritance money and gifts, settling debts, and selling property.

Applying for probate

To apply for probate you must be over 18 and an executor named in the will of the person who has died.

Applications for probate will incur a fee, often of several hundred dollars, but again this can usually be reclaimed from the estate. Fees vary widely between states and can change frequently, so it is always best to check the current fee before applying for probate.

• Western Australia: $338
• South Australia: Fees depend on the value of the estate, from $763 for estates under $200,000, to $3,051 for estates worth more than $1million.
• Northern Territory: Fees change frequently, the court recommends contacting them in advance, which you can do online.
• Victoria: $313.70
• New South Wales: Fees depend on the value of the estate. For estates worth less than $100,000 there is no fee. For estates under $250,000 the fee is $718, ranging right up to $5,528 for estates worth over $5million.
• Tasmania: Fees depend on the value of the estate. For estates less than $50,000 the fee is $150, $400 if less than $250,000, and $750 for estates worth more than $250,000.
• Queensland: $659.70

What happens next?

The grant of representation, proof that you have obtained probate, will be posted to you in the following weeks. The time it takes to process probate varies from state to state, but can take as long as eight weeks. Once you receive these documents, you have the legal authority to manage the estate.

When probate is not required

Sometimes estates can be administered ‘informally’; that is, without a grant of representation. This is sometimes possible if the sum value of the estate is quite small, or if all of the assets are held in a joint bank account.

If in doubt, it is best to consult with a legal advisor.

Find out more about the duties of an executor and how to manage an estate.