What is probate and how long does it take?

What is probate and how long does it take?

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The grieving process differs from one individual to the next. That's why the probate process may be the last priority for the surviving loved ones.

Regardless of how one may see it, Probate is necessary for keeping alive the memories of a deceased loved one.

The entire process may be seamless for intact and close families, but it can be a nightmare to some. So much so that the courts will have to step in. Whether you're currently involved in a probate proceeding or simply want to know more about the subject, this article is for you.

What is probate?

Probate refers to both the legal process and the document issued by the court that settles the issues surrounding the Will of a deceased individual. The issuance of the paper means the person in question's Will has been legally recognised and registered.

As such, the executor named in the document can process administering the estate and distributing the deceased's assets and property according to the departed loved one's wishes.

Apart from validating the Will, the probate process also confirms an executor's appointment, which is why it's formally known as a grant of representation.

A grant serves as a court order that provides executors with authority in dealing with estate issues. Financial institutions ask for a copy of this legal tender before allowing an estate administrator access to the deceased's assets. (1)

Some people may find applying for a will highly challenging or time-consuming. But this isn't necessarily true. Online platforms, such as Willed, can help individuals who don't know how to start.

What if there's no Will?

Depending on the circumstances, the Probate court can issue three grant types. If the individual left a will but did not appoint an executor, or if the latter is incapable or unwilling to carry out the grant, the judicature may furnish Letters of Administration with the Will Annexed to another person, often one of the identified beneficiaries to carry out estate issues.

Courts will hand over Letters of Administration in instances where a person dies without leaving behind a will. A court-appointed executor will also be typically one of the beneficiaries. (1)

When is Probate needed?

A grant of Probate is crucial in avoiding family conflict and having the wrong person inherit the deceased's assets. But it's not required in all cases.

For instance, if the dead has a property shared with a spouse or partner, the title can be transferred to the surviving partner without going through Probate. The same goes for joint bank accounts. Probate is also not required in cases where minimal assets are involved. (2)

How long does Probate take?

Several factors impact probate time, including the size and worth of the assets and properties, debts and other financial obligations to be paid, as well as the number of beneficiaries, and if they get along.

A Will also impacts the length of time needed to settle this specific legal issue. Ultimately, it helps to determine the timelines involved in the process to arrive at an estimate.

Timelines involved in the Probate process

Australia's Probate rules dictate that applications must be initiated within six months following a person's demise. The court will require the applicant to explain the delay through an affidavit. (3)

Notice of intention to apply for Probate (14 days-3 months)

An executor will file a Notice of Intention to Apply for Probate to kick start the process. This announcement has to be printed in a newspaper with broad circulation.

The notice must have been published on the Supreme Court website for at least 15 days in Victoria. This is done so any interested parties can contact the executor or applicant before filling the grant application. The executor must fulfill this at least 14 days, but no more than three months before the day the application is lodged before the Court. (4)(5)

Application process (at least two months)

Once done, the executor can submit the required application documents in court. It typically takes around eight weeks to a few months for the courts to decide on Probate, depending on several factors-a few of which were mentioned earlier.

The New South Wales Supreme Court, for instance, sets the processing period within 20 days from the date of filing, but backlogs and problems with the applications may cause delays. (6)

Potential delays (a few weeks to months)

The grant of probate application may experience delays if there are defects with the Will, the application, and other complex issues that the court needs to be resolved. In such cases, this legal body will issue a requisition, which needs to be responded to by the executor. (6) (7)

Conclusion

Depending on several factors, the Probate process takes a few weeks to a few months. If the Will isn't contested, the assets and taxes aren't too complex. And if the executor can present complete documents, the grant will be issued approximately in the same year. In the case of a requisition, a prompt response is crucial to avoid further delays.

References

1. "What is Probate?"

2. "Before applying"

3. "Wills and estates FAQs"

4. "ACT Supreme Court Wills and Probate-Forms"

5. "Probate FAQs"

6. "Probate"

7. "Requisitions"