What is probate and who grants it?

Obtaining Probate is an essential element in administering many deceased estates. Probate is the process of proving the last Will of the deceased with the Supreme Court to establish the following:

  • That the Will is indeed the last Will
  • Who the Executors are
  • That the will is valid

With the assistance of a lawyer, the Executor or Executors provide information to the Supreme Court in prescribed forms to prove the above information. If the Registrar of Probates is satisfied about those elements, Probate is granted. The practical step of Probate being granted is that there is an official document that is sealed by the Court as evidence of probate — it is then the proof used to conduct all of the necessary transactions for the estate.

Not all Estates require a Grant of Probate. If none of the asset holders request a Grant of Probate from the Executors then there may be no need to apply for Probate.

The types of assets where a grant of Probate will be necessary include:

  • Solely Held Real Estate
  • Bank Accounts and Share Holdings in excess of $50,000
  • Nursing Home Accommodation Bonds
  • Superannuation if it is paid to the Estate

Examples of Assets that do not require Probate include:

  • Jointly held assets including real estate, shareholdings and bank accounts
  • Motor vehicles
  • Small bank accounts and shareholdings
  • Superannuation paid directly to beneficiaries

In many people’s minds the word that often follows “Probate” is “Duty”. Probate Duty was abolished in 1984 and is no longer payable. While there is a Court filing fee this is not a duty based on the value of the estate as was the case between 1870 and 1984 in Victoria.

The Estates team at OFRM are always willing to assist with any estate matters and you can call them on 03 5445 1000. Make sure you look at the other information regarding estates on our website as well.

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