Understanding Probate
If a person dies in the ACT and leaves assets behind, it may be necessary to apply for a grant of probate (where there is a will) or letters of administration (where there is no will) to deal with the estate. The purpose of probate is to officially prove the validity of the will and authorise the executor named in it to manage the deceased’s assets.
Preparing for Probate When Estate Planning
If you pass away without a will, then you will have no executor to manage your estate – instead, the court will need to appoint an administrator, which can cause delays and added expense. It is a common misconception that a will only contains instructions about what will happen to your estate. Such instructions are much harder to carry out if you do not appoint an executor to manage those assets, usually a surviving spouse or adult child. An executor is responsible for collecting assets, paying debts and taxes, and distributing assets to beneficiaries.
An executor should be a person that you trust to manage your assets and carry out your wishes. Appointing an executor should not be a last-minute decision; you should have a number of conversations with them to make your wishes clear.
You should also compile a comprehensive list of every asset that you have, even if you think that it isn’t important. You should also gather essential documentation like birth certficates, marriage certificates, Title Deeds and more to put them all in the same place.
When is Probate Needed?
Probate is needed when the deceased held assets (most importantly real estate) in their sole personal name. Probate is also commonly required for high-value assets, as financial institutions typically require a grant of probate before releasing funds over a certain threshold (often around $20,000, though this varies by institution).
It is not needed if the assets are held as joint tenants (as opposed to tenants in common), as the surviving joint tenant – usually a spouse – automatically inherits the deceased’s share. Assets such as life insurance policies with a named beneficiary may pass directly without the need for probate. Superannuation death benefits are handled by the fund trustee and may also pass outside of probate, depending on any nominations in place.
How to Apply for Probate
A Notice of Intent to Apply for Probate must be published on the relevant Supreme Court website. In the ACT, this is done via the ACT Supreme Court probate notice form. You must lodge the original will with the court (along with any required copies) to prove that you are the executor. You must wait at least 14 days after publishing the notice in order to be granted probate. This period serves as a public notice to ensure the estate is managed lawfully before the court formalises the executor’s authority.
In the ACT, estates valued at under $50,000 incur no court filing fee. For estates above this threshold, filing fees apply and vary depending on the value of the estate.
Probate can be an overwhelming process in a very difficult time following the loss of a loved one. It is necessary, however, to ensure that their estate goes to the right people. If you have any questions about probate for yourself or another person, please do not hesitate to contact us. We are here to help.
DISCLAIMER: This article is for informational purposes only and does not constitute legal advice.