Understanding a grant of probate in Australia

A grant of probate is a legal document issued by the Supreme Court in the state of territory where the deceased resided. It confirms the will is legally valid and authorises the executor to administer the deceased’s estate, including collecting assets, paying debts and distributing property.

Without a grant of probate, financial institutions, government agencies and other institutions may not release assets to the executor. 

Usually, the executor named in the will applies for probate. 

If there is no will (known as intestacy) or no appointed executor, an interested party, such as a close family member, may apply for letters of administration, which serves a similar function. Consulting an estate lawyer can help navigate these situations effectively.

For more information on this, see our article ‘Understanding a grant of letters of administration in Australia’. 

The process can vary slightly depending on the state or territory, but typically includes the following steps:

1. Obtain the death certificate
Before applying, the executor must obtain an official death certificate from the state or territory’s Births, Deaths and Marriages office. 
 
2. Locate the original will
The original will must be provided to the court when applying for a grant of probate. This is often held by the lawyer who drafted the will, but the deceased’s accountant or financial advisor, or stored securely by the deceased or their family.

3. Value the estate
The executor must assess and list all assets and liabilities of the deceased’s estate, including property, bank accounts, investments and debts. This step is crucial and helps confirm the overall value of the estate. 

4. Advertise the intention to apply (if required)
In some jurisdictions, the executor must publish a probate notice in a designated registry or newspaper. This gives creditors and interested parties time to contest the will, if necessary.

5. Lodge the application
The executor submits the application to the Supreme Court in the relevant state or territory. This typically includes:

• a formal probate application
• the original will
• the original death certificate
• an affidavit detailing the executor’s role and responsibilities
• a statement of assets and liabilities.

Requirements can differ across states and territories, so it’s important to check the specific requirements in your jurisdiction before making an application. 

Court review and approval
The court will review the application and may request further details or corrections. If approved, the grant of probate is issued, allowing the executor to begin administering the estate.

Once the application is lodged, probate typically takes between four to 12 weeks to be granted. Delays can occur if the will is contested, documents are missing or the estate is particularly complex.

While an executor can apply for probate independently, the process can be complex, especially for large estate or where disputes arise. An estate lawyer can:

• provide expert guidance on the legal requirements
• help avoid delays and errors
• provide peace of mind during a difficult time.

Fees vary depending on the value of the estate and the state in which probate is applied for. In addition, there are court filing fees, legal costs may apply if you choose to engage an estate lawyer.