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A guide to probate: what you need to know
When a loved one passes, it’s important that practical concerns are taken care of as smoothly as possible so you can spend time on the things that matter most.
First, you need to find out if your family member has left a will. If they haven’t, they are said to have died ‘interstate’. In this case, if you are next of kin, you may need to apply to be appointed administrator of the estate, and once approved, distribute the assets of the estate according to the rules of intestacy, which vary from state to state - NSW, QLD, WA, VIC, TAS, NT, SA.
If your loved one has left a will, there are a couple of questions you may need help with around probate, including what is probate, when is it necessary and how long does it take? You may also need to know how to apply for probate and if you need it to make a life insurance claim. We help you answer these questions so you can focus on what’s important: making sure your loved one’s final wishes are honoured.
What is probate?
If you’ve been named as the executor of a loved one’s will, before you can carry out its instructions, you may need to first register it with the Supreme Court in your state - NSW, QLD, WA, VIC, TAS, NT, SA. Then, if the will is recognised as legally valid, you will be given a grant of probate. This means, as executor, you can now distribute the assets to the heirs named in the will. Most financial institutions will ask for a grant of probate before accounts and funds can be released to anyone other than joint account holders.
However, before you apply, first find out if you need a grant of probate.
Do I need a grant of probate?
As the executor of your loved one’s will, you may be able to gain access to your family member’s assets without a grant of probate. For example, the will and a death certificate may be enough. However, you may need a grant of probate if:
- Assets are not jointly owned and the asset holders (such as shares or funds held in a financial institution or funds held by a nursing home) require a grant of probate before they will release the assets. The rules vary so it’s best to contact each asset holder and ask what the requirements are before you apply for the grant of probate. Some asset holders may release assets without it if it’s under a minimum set amount.
- Property is not jointly owned. Check the property’s title deed or seek legal advice to find out more before you apply for the grant of probate. However, if it is jointly owned, the property may go to the other owner.
- There is a dispute about whether the will is valid, in which case a grant of probate can be used to help settle the matter.
How long does it take to get a grant of probate?
This depends on the state or territory you are in. In New South Wales for example, it can take up to 20 working days to process an application – and complex applications may need more time. Not having an original will or having one that is damaged may cause hold ups so make sure to look after the will if it’s in your hands. In Victoria, it can take several weeks for an application to be approved – and the application is usually done by a trustee company or solicitor.
What do I need to do to apply for a grant of probate?
First, it’s important to know that only the executor of the will can apply for a grant of probate. (If an executor hasn’t been named in the will then the family member’s next of kin can apply for a letter of administration before you investigate whether you need to then apply for a grant of probate.) You can apply for probate yourself, or through a solicitor or trustee company. If you appoint a trustee company, they will act as executor. If you apply yourself, make sure you understand what’s involved and have all required documentation ready as mistakes may result in delays.
Before you apply, gather the current and original will, the original death certificate and any papers with details of your loved one’s assets. Then head to the website of the Supreme Court in your state or territory where you can download the appropriate application forms - NSW, QLD, WA, VIC, TAS, NT, SA. Here, you can also read up more about what a grant of probate is and how long it takes to apply for one. When you’ve completed the forms, you’re ready to submit them to the court and pay a lodgement fee. If you have any trouble filling out the forms, you may find it helpful to seek legal advice as it could save you time and money in the long run.
Is a grant of probate needed to make a life insurance claim?
If your loved one has nominated a beneficiary for their life insurance policy, a grant of probate to claim shouldn’t be needed – the claim can be processed and paid directly to the beneficiary. Of course, the opposite may hold if a beneficiary hasn’t been named and a grant of probate may be needed. To avoid the potentially lengthy process for application, we encourage everyone with a life insurance policy to nominate a beneficiary as soon as they apply for life insurance.
Keep in mind that life insurance isn’t automatically part of your loved one’s estate. If you’re the beneficiary the money can be accessed relatively quickly without the need for a grant of probate. You may even receive an advance while your claim is processed, which can help cover immediate costs like medical expenses, mortgages or debts.
As you manage the end of life wishes of your loved one it may also be worthwhile considering the protections you have in place. Life insurance can help minimise the financial burden on your loved ones in the unfortunate event of your death, or the diagnosis of a terminal illness.
- Why do you and your family need life insurance?
- How much life insurance do I need?
- Life Insurance through super vs life insurance outside of super
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