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5 Situations Where You Can Avoid Probate In Australia

It’s a popular misconception that every estate management needs a Grant of Probate. Yes, Probate of a will is a legal process that is needed in most cases but not all. If you are lucky, you may escape from the entire Probate process.

To understand how to avoid Probate in Australia, you must first know the Probate of a will and the other basics.

So, let’s start from there!

What is the Probate of a Will?

Probate of a will is a legal procedure of dealing with a decedent’s estate, complying with the Will made before the death. The will-maker must have also specified an individual as their choice of the executor of the will. Sometimes, there may even be more than one executor.

Through the Grant of Probate, The Supreme Court of NSW approves that:

  1. A person deceased
  2. The deceased made a valid Will
  3. The Will mentions the name of the executor(s) who is eligible to administer the estate of the deceased.

How long does Probate take in NSW?

Let’s discuss how long does the process of probate take in NSW. The executor must apply for the Grant of Probate within 6 months from the date of death of the deceased. If applied after the time limit, the executor will need to provide a proper reason for it. Based on that, the court decided whether to accept the application or not.

Grants of probate might take up to 20 working days if the court paperwork is correctly completed. The probate process will take longer if the court paperwork is incomplete or ambiguous.

In this case, the Supreme Court will request additional information before proceeding with the grant of probate.

Once the Grant of Probate has been received, the executor of the estate is expected to meet all the requirements within 12 months — ‘Executor’s year’. In some cases, it may go beyond this time.

5 Situations that don’t need Probate

1. Estates of Small Size

Every asset holder and organisation has a policy explaining when a Probate of a will is necessary, which is often decided by the value of the deceased’s assets. Executors can avoid Probate if the value of a person’s assets falls beneath their ‘small estates’ threshold.

So unless the estate’s assets are more than that threshold, Probate is not necessary. Typically, asset holders do not need Probate of a will if an asset is worth less than $50,000. However, the threshold might be as low as $20,000.

In this case, executors must present certified copies of the will and death certificate to access and manage the deceased’s assets.

2. Shared ownership

In the case of joint ownership, the rule of survivorship applies when one of the owners passes away.

If the dead possessed assets jointly with another person or individuals, the assets do not become part of their estate when they die, and no Probate of a will is necessary to transfer title. This is because the surviving joint owner inherits full ownership following the death of the other joint owner.

3. Binding nominations

The need for Probate of a will may be avoided if the dead had Superannuation and/or Life Insurance payable to designated beneficiaries rather than their estate.

A few crucial points to note here are:

  • Where there is a genuine binding nomination, the Super Fund Trustee or Insurer must pay the deceased’s beneficiaries.
  • The Trustee or Insurer has the authority to pay the beneficiaries or the estate if the nomination is non-binding.
  • If the nomination is no longer valid, it must be amended every three years.
  • If the nomination is non-lapsing, it will stay valid until revoked or altered.

In case the deceased did not name a beneficiary or their nomination has expired, the Trustee or Insurer determines how the benefit will be paid.

4. Intestacy

When someone dies intestate, it means they haven’t made a Will. Probate can be avoided in this case because there is no valid will. Instead, the next-of-kin of the deceased applies to the Letters of Administration seeking permission to deal with the estate.

Due to the absence of a valid Will, the estate is dealt with following the laws of intestacy.

5. Upon executor’s request

We discussed small estates, but the executors may avoid Probate even when the assets values are over the threshold. It happens under these circumstances:

  •  The expense of getting Probate is excessive compared to the estate’s value.
  • The estate is divided equally among the deceased’s spouse or children.
  • The estate is solvent, and no claims have been filed against it.
Conclusion:

Even though Probate is not a compulsory legal process, most executors will need to file for it when a loved one dies, leaving behind land, assets, and debt. This is because asset holders and other institutions want proof of who is authorised to handle the deceased’s estate.

Probate of a Will is quite a vast subject, but we hope you understand it better now.

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