Probate is a legal document issued by the Supreme Court in your relevant state or territory authorising an executor to deal with a deceased person’s estate according to the terms contained in the deceased person's last valid will.        

Probate will not be necessary in all circumstances. Probate only becomes relevant if the deceased person died owning real estate and they are the last surviving owner of the property held as joint tenants (property owned with some-one else) or if the deceased held financial assets such as shares or bank accounts with a very large balance.

When all real property (real estate) assets are held as part of a joint tenancy or if the estate is very small and relatively uncomplicated (worth less than $15,000 in NSW for example) there is generally no need to obtain probate. The exception to this is where the asset holder such as a bank with a registered security interest (mortgagee) requires a grant of probate before releasing the asset.

There are 2 forms of probate. These are common form probate and solemn form probate. Common form probate is issued when the application for probate is uncontested and can usually be revoked under certain circumstances. Solemn form probate is issued after all interested parties who have a claim to contest the application take part in court proceedings. Solemn form grants of probate can only be contested where there are exceptional circumstances.

This Legal Guide on Probate provides executors and potential beneficiaries under a will with information about obtaining a grant of probate. It explains the procedures in NSW. There are similar procedures in other Australian states and territories however there may be some small differences. Before making important decisions it is advisable to obtain legal advice specific to your situation. LegalEagle’s™ free directory profiles all lawyers in Australia. You can use it to Find a Lawyer near you.

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Warning: Information provided through LegalEagle™ is for general guidance. It is not legal advice. Laws and procedures referred to may change and differ between states, territories and nationally. There may also be important exceptions or qualifications. Only a lawyer providing formal legal advice can assess your particular circumstances to determine how the law will apply.