What is Probate?
For those not dealing with lawyers every day, some of the legal terms and jargon can be quite confusing and overwhelming. One of those terms that can be mysterious is Probate.
Just what is Probate? Loosely translated, the word Probate is translated ‘Proven’. What the Supreme Court is doing, all going well, is proving that the original Will is the last Will of the deceased and appointing the Executors named in the Will. This means that the Executors can step into the shoes of the deceased and administer their Estate according to their Will.
In Victoria, as part of the application process, the Executors are required to publish an advertisement on the Supreme Court of Victoria’s website telling the world their intention to file an application for Probate. After 14 clear days, the Executors then can file their application. However, if anyone has reason to object to the Probate application, they can place a caveat on the application.
This application involves the Executors filing an Affidavit (a written statement), a Statement of Assets and Liabilities of the Estate (the valuations are calculated on the deceased’s date of death), a certified copy of the Death Certificate and the original Will.
If the Supreme Court has any questions regarding the Probate application, it will issue a requisition.
Requisitions are a request for further information and must be answered by Affidavit. From my experience, requisitions are usually caused by:
Poorly drafted Wills that do not meet the formalities of a Will
Incorrect witnessing of the Will
A ‘do it yourself’ Will that has not been completed correctly.
When the Supreme Court is satisfied with the Probate application, it will issue a Grant of Probate. This is a legal document sealed by the Supreme Court.
I have overseen numerous Probate applications in every jurisdiction of Australia.
The Probate application process in each state is vastly different. Each state has its own legislation and requirements for proving the deceased’s final Will.
The three things each state has in common with every other jurisdiction is:
A well drafted Will that meets all of the formalities makes for a smoother Probate application process
A well drafted Will saves on legal fees as there is less need to respond to requisitions and / or explain informalities with the Will to the Supreme Court
A poorly drafted Will that does not meet formalities or is ambiguous delays the Probate application process, causes stress and worry for Executors and beneficiaries and usually costs more in legal fees during the Probate process.
Written by Mark Murnane, Wills & Estate Lawyer
Need help understanding some legal terms? Visit our Estate Planning: Glossary of Terms.
DISCLAIMER: This article is provided for general information purposes only. It does not constitute specific legal advice or opinion. Although our aim is to provide you with as accurate information as possible, you should not act or rely upon the information in this article without seeking the advice of an experienced lawyer who specialises in the particular area of law relevant to your inquiry. Please do not to hesitate to contact Murnane Legal to make further inquiries or to make an appointment to discuss the specifics of your situation.
