Probate Requirement in Victoria and NSW
When a person dies, leaving behind their estate and liabilities, a Will becomes a legally-binding document that determines the nature of the further proceedings. It answers questions like who will inherit the estate, who will execute the Will and who would be liable to pay any existing debts and taxes.
But before these proceedings begin, the executor named needs to prove the validity of the Will before the court. That is where probate comes into the picture. Probate or grant of probate is a court procedure that authenticates the validity of the Will left behind by a testator. Once the probate is approved, the Will can be executed without any legal blocking. To help you better understand the probate process, we will answer some basic, but key questions like when is probate required/not required in Victoria and how long probate takes in NSW.
Let’s get started.
What is the Purpose of a Grant of Probate ?
- Verifying the identity of the executor.
- Offering full disclosure of the assets and liabilities of the deceased.
- Confirms the validity of Will.
How long does probate take in NSW and Victoria?
Before applying for probate with the supreme court, you must publish a probate notice or notice of intended application, on the NSW Online Registry website. After 15 days of publishing the probate notice, you can submit the probate application along with all the required documents. The approval may take 2-3 weeks, depending on the waiting list.
Make sure to fill in the correct details and attach all the required documents, to avoid rejection on the grounds of discrepancies and falsification. The Supreme Court of NSW or Victoria might send you a requisition form pointing out the issues and the rectification procedure in case of any errors.
When is Probate Not Required in Victoria and NSW?
While probate is a legal requirement, it is not always mandatory. Below are situations when probate is not required in Victoria and NSW.
For Joint Tenant Property
In the case of Joint Tenancy, a right of survivorship exists whereby the surviving member automatically acquires the deceased’s share. So, if the estate, including property, vehicles and bank accounts left behind by the deceased, is jointly owned by a family member or partner, then the estate will be transferred to the surviving joint tenant. Married couples or long-term couples usually come under this category.
But it’s important to note that Joint Tenancy is different from Tenants in Common. While both denote a property co-owned by two parties, in Tenants in Common, there is no right of survivorship. So, the concerned estate won’t be automatically transferred to the surviving member but needs to be distributed as per the Will of the deceased. In this case, a probate is required to determine the ownership.
The estate of a person who died without a will comes under this category. When a person dies intestate, i.e., without a will, their property is distributed according to the laws of their state. In this situation, a letter of administration is required. Usually, the next of kin applies for a letter of administration, and if approved, it gives them the title of administrator and the right to distribute the deceased’s property as per the intestacy law.
Every financial institution or share registry has a low-value cap, and if the estate left behind by the deceased is valued below this cap, probate is not required. In case the estate value is at the borderline, you can submit a letter defining why probate is not required via a solicitor. The reasons might include:
- The deceased doesn’t own a lot of assets.
- The estate under consideration is small, and applying for probate would be unnecessarily expensive.
- The deceased has distributed the estate equally amongst their children.
- There are no legal claims against the Will or estate.
These are the three situations when probate is not required in Victoria and NSW.
When is Probate Required?
- A probate is a mandatory requirement if there is a conflict regarding the validity of the Will left behind by the deceased. If there is any claim of Improper Execution, Mental Incompetence or Undue Influence against the Will, then Will’s validity must be proved in the court of law using probate.
- If the person dies without writing a Will, the entire probate process is necessary to determine ownership.
- For estates solely owned by the deceased, probate is required for their lawful distribution.
- Probate is required for assets owned as Tenants in Common.
- If the beneficiaries named in the Will pass away before the testator, especially in the case of Insurance or retirement funds, a probate is required for the transfer of money.
To Sum Up
Depending on your situation, probate might or might not be required. So, make sure to understand the procedures and probate guidelines and proceed accordingly. Probate in NSW/Victoria is full of process, letter & documents so we recommend you avail the assistance of certified probate consultants to streamline the process and clarify any doubts.