What is probate?
I’m quite often asked: what is probate? A lot of people think that it is a tax, and that it’s an amount that is paid depending on how big the estate is. Wrong.
In most States in Australia, the fee for probate is not related to the size of the estate at all. In Victoria, it is a flat fee to the Supreme Court – just a filing fee – and far cheaper than many other court applications that you could make.
Probate is just a legal document issued by the Supreme Court, confirming the validity of the Will, and giving the executor the legal right to deal with assets in the estate, particularly real estate.
A grant of probate is a grant of representation in a deceased estate when there is a Will. Letters of administration are the equivalent grant of representation in a deceased estate when someone dies intestate (without a valid Will).
To apply for probate, the executor(s) need to submit an application to the Supreme Court in the form of an Originating Motion, to commence proceedings. All the proceedings are usually dealt with without anyone having to appear, so it is all just paperwork.
The executor’s evidence with their application is in the form of an affidavit. In the affidavit they need to establish that the person has died (usually by attaching the death certificate), they need to prove that the Will is valid, and they need to submit an inventory of the assets and liabilities of the estate.
Putting this application together can take a few weeks after the death certificate arrives, and in Victoria death certificates are taking 6-8 weeks to issue. So beneficiaries of an estate should expect that it will take about 3-4 months after the death before an application is made for probate.
Then, after probate, in most States, because Wills can be contested within 6 months of probate being granted, estates usually aren’t distributed for another 6 months. So, generally an estate is finalised within 10 months at the earliest, but some estates can take years to administer.