Understanding probate

Probate is the formal approval of a Will by the court, but 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 deceased 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 obtain probate so that it knows 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 in excess of $50,000, the bank will require probate to be produced prior to releasing funds.

We come across the need for probate most commonly in relation to retirement village and aged care contracts, which are for a substantial sum of money.

The retirement village or aged care operator usually will require probate to be obtained prior to releasing to the estate (or the beneficiaries) the proceeds of the sale of retirement village unit or aged care RAD (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 that 14-day period has expired the original Will, plus a series of other court documents must be prepared and filed in the Supreme Court.

It 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.

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.

Elder Law are experts in probate and estate management. Visit brisbaneelderlaw.com.au or sunshinecoastelderlaw.com.au call 1800 961 622.