When someone dies, before their estate can be dealt with a grant of probate is often required. Probate is a legal document that declares a Will valid and authorises the executor(s) to carry out the terms of the Will.
Probate is declared by the Supreme Court of the State where the person who died owned assets, and means the executor(s) of the Will can legally begin dealing with the assets of the estate. Sometimes, if a person holds assets (for example multiple properties) in different States, probate is needed in all of those States.
While probate can generally be otained within three months of the death of someone, the length of time can vary considerably because of many factors – and this is far more common than people realise.
Just a few of these factors include:
• if the Will was properly executed in the first place
• the completeness of the Court application for probate
• the certainty of testamentary capacity (being of ‘sound mind’) at the time the Will was signed
• how much information there is about the estate’s assets and liabilities
• whether a death certificate has been produced.
When applying for probate of a Will, a series of steps are involved. These steps differ depending on the State in which the application is being made. In Victoria, an executor must advertise their notice of intention to apply. Then an application is made to the Supreme Court, providing the Will, death certificate and inventory of the Will maker’s assets and liabilities. An affidavit is also provided, setting out all relevant background information.
In each Australian jurisdiction there is legislation setting out the statutory period in which a claim can be made for further provision from an estate. In Victoria, South Australia and Western Australia for example, this period is six months from the date on which probate is granted.
During this six month challenge period, the executor is unlikely to make a distribution from the estate because they can’t know for sure if there will be other claims. Instead, during this period time is spent calling in the estate’s assets (closing bank accounts, selling real estate and so on) so that a distribution can be made as quickly as possible once the six month period ends