What Is Probate And How Does The Process Work?

Probate refers to a legal proceeding where a deceased person’s last will is verified and validated by a court. The process is usually initiated by the executor, who is named in the will. To navigate the steps and legal processes during probate, an executor would usually need the assistance of a lawyer. 

It’s important to take note that probate is only necessary if the deceased left a will. If the deceased left no will or in other words, has died as intestate, then the distribution of his or her properties would be subject to an intestate proceeding. In that case, probate is not necessary.

The Purpose of Probate

As previously mentioned, probate is a legal process that is necessary to validate the contents of a will. During probate, the court will examine and verify the purported last will and testament of the deceased—also known as the testator—and determine if it’s indeed a valid will. The following are the main things that a court will look into during probate:

  • To Prove that the Will is Executed as Prescribed by Law

The formalities required in the making of a valid will would differ depending on the state you’re in. But generally, a valid will requires the signature of the testator and the names and signatures of the witnesses as well. In most states, at least two witnesses would be required and aside from that, the testator and witnesses must be in the presence of each other when the will was written and signed.

  • The Testator had the Capacity to Make a Will

During probate, the court would normally look into the capacity of the testator at the time he or she made the will. The most important thing here is to prove that the testator was of a sound mind, and he or she understood the nature and purpose of the will. It’s also necessary that he or she is fully aware of the properties that were going to be distributed through the will.

  • The Testator Executed the Will without Undue Influence

Although a will is generally required to be written by the testator, it may be prepared by someone else, like an attorney. This is still valid as long as it is complete with signatures from the testator and his or her witnesses. However, it must be proven during probate that the testator indeed knew and approved the contents of the will, and it was made without fraud or undue influence on anyone’s part.

  • Give the Interested Parties a Chance to Contest the Will

Aside from verifying the validity of the will, another purpose of probate is to give the window and the interested parties an opportunity to file an opposition against the will. In other words, parties can contest the validity of the will during probate.

For example, if a person has been fatally injured during a motor accident, and has died after a few weeks in the intensive care unit. Somehow, there’s a person that presents a last will and testament of the deceased saying that it was executed while the testator was confined at the hospital. In that case, a family member can contest the will since they’re aware that the deceased isn’t of sound mind and good physical condition during that time.

Applying for a Grant of Probate

In Australia, applying for a grant of probate can differ depending on the rules of each state. However, there are similarities in the process. If you’re an executor who’s planning to apply for probate in New South Wales, Western Australia, or Queensland, here’s a list of the general steps that might be required from you:

  • Publication of Intention to Apply for Probate

Before you can submit an application for probate in your local court, you may be required to publish your intention of doing such through an online notice or advertisement. Typically, the publication should be up for at least 14 days. This is done to give notice to the interested parties or heirs that need to know of the impending proceeding.

  • Collation of Necessary Documents

Just like any other court proceeding, you need to prepare some documents that would be necessary during probate. This includes the last will and testament of the deceased, the death certificate, and in some cases, a list of the deceased properties would be required.

  • Filing and Payment of Fees

Once the publication requirement is compiled and all the other necessary documents are already prepared, you can now file your application for a grant of probate to your local court. This may be done personally or by post. A filing fee is also required and it would then take a few weeks before the court can decide on the grant.

  • Conclusion

Probate may seem like an arduous process, but this is a necessary step to make sure that the purported last will of the deceased is valid and legitimate. It helps prevent people from taking advantage of the deceased’s estate. It also protects the interests of the heirs in the process. Since the testator is not around anymore, the court—through probate—steps up to ensure that the testator’s last wishes will be followed in good faith.