Understanding probate when creating a will

Put simply, a will is the formal instructions for what happens with a deceased person’s estate when they die. When creating a will, there’s a legal process called probate that determines the validity of your wishes. But how does it work and how long does it take? If you’ve been putting off writing your will or need to update it after a major life milestone, planning ahead is essential. Here’s what you need to know about wills and probate.

What is the probate of a will?

It’s easy to get confused when learning about the complexities of will-making and specific processes like probate. That’s why it’s helpful to get advice directly from the experts.

“At its most basic, probate is simply an order of the Supreme Court which recognises the authority of an executor to deal with the estate of a deceased person,” says Thomas Ashton, Estates Senior Associate, Qld Estate Lawyers. “It acts as independent proof, verified by the Supreme Court, that the person named in the grant is the executor named in the last valid will of the deceased.”

Ashton says that whether or not probate is actually required will depend on a few different factors, including:

• The number, types and value of assets owned by the deceased person
• Whether the deceased held property in their sole name, or jointly with other persons
• Where the deceased’s estate and assets are held

“When making a will, it should not be the will-maker’s concern if probate is going to be required. Instead, it will be a matter for the executor to address after the will-maker has died,” he says.

The probate process explained

So, how exactly does the probate process work? It’s not as complicated as you might expect, but it all comes down to the validity of the will.

“Probate is initiated and granted to the executor of the estate only when a person dies leaving a valid will,” says George Bazouni, Managing Director, and Violet Array, Special Counsel at New South Lawyers. “A valid will must be in writing and signed by the deceased person/testator in the presence of two witnesses who are not beneficiaries under the will.”

He adds that when creating a valid will, it’s important that the executor appointed is trustworthy and able to execute the terms of the will, which includes ensuring the estate is distributed in accordance with the intentions and will of the deceased.

“In the absence of a valid will, the court can grant a ‘letters of administration’ upon application to the court, appoint and grant authority to a person known as the administrator, to administer a deceased’s estate,” Bazouni says.

Timeline of probate

Unfortunately, managing someone’s affairs after they pass away can be a lengthy process. When it comes to applying for a grant of probate, Bazouni says it generally takes between six weeks to three months.

“The probate process to winding up of the estate can take approximately a year from the date of death of the deceased,” he says. “However, the timeframes for grant of probate to distribution and winding up of the estate will largely depend on the family dynamics, value and composition of the assets of the estate.”

Costs and fees

The main cost of probate is the filing fee, and this will differ between states and territories. In New South Wales, for example, the fees are calculated on the gross value of the assets only.

For assets less than $100,000 there is no fee. But over $100,000 the fees start at $863 and can rise to $6,652 for probate on assets worth $5 million and over. Other probate fees may include lodging a caveat against a grant or reseal, notice of motion to file accounts, scan or photocopy of a will, and more. Find out more with the Supreme Court of your relevant state or territory.

Strategies to minimise probate challenges

Ashton says that estate lawyers are always asked a few common questions, such as “why should I pay you to make my will?” and “why shouldn’t I get a will kit and make my own will?” The answer, he says, is all about ensuring validity.

“The function of your will is to make sure all your assets are transferred to your intended beneficiaries, with as little complication as possible,” he says. “Your will deals with all of your assets – your whole livelihood – and so much like an insurance policy, it’s preferable to ensure your will fully and properly covers your circumstances, so that when it is needed, there are no disputes or uncertainties.”

Assuming that the will was properly drafted and signed, Ashton says this will also simplify the process of obtaining probate.

“Where a will is ambiguous or unclear, then this may complicate the process of obtaining probate, putting your estate to additional (and potentially significant) costs and creating unnecessary anxiety and stress for loved ones at an already difficult time.”

Tips and tricks to consider when creating your own will

To make sure your will is solid, Ashton says it should appoint an executor (i.e. someone entrusted to follow the instructions given by the will), and then give instructions for how your estate is to be distributed.

“The necessary formalities to create a will vary slightly between each state and territory, but the basic formal requirement is that a will should be:

1. In writing; and
2. Signed by the will-maker (also called the testator), in the presence of two independent witnesses who must attest and sign the will in the will-maker’s presence.

“A will does not have to be prepared by a lawyer, though ‘homemade wills’ are often the subject of estate disputes. For this reason, it’s more common for a will to be professionally prepared, so as to avoid technical problems or ambiguities,” he says.

When to consult a lawyer

There are a few different circumstances in which it’s a good idea to speak to a legal professional.

“It is important to reach out to an expert if the assets of the estate are complex, including trusts, corporate structures, farmland, or if the family dynamic is complex, such as in the case of a blended family,” Arrey says.

You should also consult with a lawyer if you have any specific intentions to be carried out in your will, such as if you wish to exclude someone from your will, or if there are foreign assets involved or foreign beneficiaries. If some of your estate includes digital assets and cryptocurrencies, then a legal professional will need to be involved here too.

Probate can seem confusing at first, but it’s an important part of ensuring the deceased’s wishes are carried out. When you’re organising your will, it might be a good time to think about funeral insurance and how it could help provide your family and friends with peace of mind. Start comparing funeral insurance with Choosi today to find out more.