Probate is a term that regularly comes up when dealing with estates, but what it means, and what is involved, is often not well understood.
Probate is a court’s formal approval of a Will. It is not needed in all cases.
With small estates, depending on the assets, and the financial institution to be dealt with, the release of funds from a bank or super fund to the beneficiaries of the Will can be arranged simply by providing a death certificate, and a copy of the Will.
However, with more substantial assets, the financial institution will commonly request the executor of the estate to obtain probate so that it knows that it is paying out on a Will that has been officially endorsed by the court.
Banks have different rules depending on their individual requirements, but generally if there is an account of more than $50,000 then it will require probate to be produced before releasing funds.
We come across the need for probate most commonly in relation to retirement village and aged care contracts.
The usual practice is that the retirement village or aged care operator will require probate to be obtained prior to releasing to the estate (or the beneficiaries) the proceeds of the sale of the retirement village unit or the aged care refundable accommodation deposit. The process of probate involves firstly advertising to see whether there are any alternate Wills or potential claimants against the estate.
Once a 14-day period has expired, the original Will, plus a series of other court documents must be prepared and filed in the Supreme Court.
The court will then review the Will and affidavit material in support and make an assessment as to whether the Will seems to be validly executed and should be endorsed as the true and correct last Will of the deceased person.
If satisfied, the court will issue the probate, which can then be presented to the bank, retirement village or aged care home to release the funds to which the estate is entitled. The right to make a Family Provision Claim still exists.