When is probate required?

Do I need to apply for Probate?

Sometimes it’s not necessary to apply for a Grant of Probate when you are dealing with a deceased estate.  Take some time to work out whether it’s needed.

The main reason that Probate is required is that some organisations that hold the deceased’s assets or maintain registers that record title to such assets, will not release them or record a transfer to the executor for distribution to the beneficiaries unless they have first seen the grant of probate from the Supreme Court.

We can help you to quickly identify whether you need to spend the time and cost to get a Grant of Probate.

If you want to talk, you can also call us on 1300 654 590.

Otherwise, if you feel like a quick primer on the relevant issues, then keep reading…

When is Probate Unnecessary?

No Will

‘Probate’ is the process by which the Supreme Court gives the executors of an estate the power to distribute assets to beneficiaries.

If the deceased does not have a Will, you do not need a grant of Probate.  You will instead need to apply for ‘letters of administration’.  It’s a little bit of a different process, but it effectively achieves the same thing.

If you need help dealing with an estate where there is no Will, call us on 1300 654 590 and we will be happy to help.

Jointly held property

Probate (or letters of administration) will not be required for any of the deceased’s assets that are held as ‘joint tenants’ with another person, (but not ‘tenants in common’).  For example, people often hold their family home as joint tenants with their spouse.  The deceased’s interest in the jointly held asset will automatically passes to the ‘surviving joint tenant’, without probate being required.

For example, if a husband dies (survived by his wife), and his bank accounts, motor vehicles and family home are all held in joint names (as joint tenants), probate or letters of administration will not be required.

TRAP! If real property is held as tenants-in-common, probate will be required because the deceased’s interest does not naturally pass to the other tenant(s). Real property owned other than as joint tenants will always require probate.

Low value assets

An estate can also generally avoid probate or letters of administration when the only assets of the deceased are of a low value, such as small share parcels or bank accounts, (usually these will need to have a value less than $20,000).

Each financial institution and share registry has its own low-value “cap” being the value that the asset must reach before it considers that probate or letters of administration are required to transfer ownership of the asset.

Once again, in order to transfer low-value assets it is generally necessary to prove that you would be the person administering the estate if probate (or letters of administration) were granted (e.g. a copy of the Will), and that the owner has died (by means of producing the Death Certificate).

Please call us on 1300 654 590 if you would like our assistance in identifying the low value caps and then dealing with the low value assets.

How can I work out if Probate is needed?

In order to decide whether probate or letters of administration are required, we recommend the following strategy:

Step 1:

Compile a list of all the assets owned in the deceased’s name, and record:

  • How they are held (e.g. solely, jointly, as tenants in common, etc);
  • Where they are held (e.g. the name of the bank, the share register, the relevant Lands Titles Office, etc);
  • The current market value of each asset; and
  • Whether there are any associated liabilities.

Call us on 1300 654 590 for assistance if you are not sure how to identify the assets and liabilities, or determine any of these features.

Step 2:

If assets are held as joint tenants, it may be necessary to lodge a ‘Notice of Death’ with the Land Titles Office or various registries to record the passing of the joint interest to the surviving owner.

We can usually help you do this quickly and with little fuss.  Please call us on 1300 654 590 if you would like us to assist you with this process.

Step 3:

If some assets are held in the sole name of the deceased, or as tenants in common (i.e. not joint tenants), then each organisation where those assets are held should be contacted to determine their ‘deceased estate transfer policy’.

If the value of the assets held with each organisation is under their low value threshold or cap, then probate or letters of administration should not be required.

The assets can generally be dealt with by providing the following documents to each organisation where assets are held (i.e. a bank, a share registry):

  • The Death Certificate; and
  • A copy of the Will (if there is one).

Call us on 1300 654 590 if you need some assistance to find out an organisation’s ‘deceased estate transfer policy’ or if you’d like us to deal with them on your behalf.

Step 4:

If the estate includes real estate (e.g. a family home), and the real estate is not held in joint names, then probate (or letters of administration) will be required before the land can be transferred to the appropriate beneficiary. This is because the land titles office will not anyone to deal with the property until they have the appropriate authority in the form of a grant of probate.

If probate (or letters of administration) is required, then contact us on 1300 654 590 or Click here to find out more about how we can help you by giving straight answers and offering our professional probate services for a fixed price.

Want to know more? Click here to find out more about our fixed fee Probate Services.

Download our Free DIY Probate Kit (SA)

DIY Probate Kit (SA) (1.2 MB, 7008 downloads)

Download our Free eBook:  What to do when someone dies

What To Do When Someone Dies (2.0 MB, 6816 downloads)

 


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Published by

Andrew

Lawyer to entrepreneurs and investors