What is probate?
A Grant of Probate is a court order which authorises an executor to collect, deal with, and distribute the assets of the estate in accordance with a Will.
Do I need to live in the ACT to get a Grant of Probate?
If you are an executor of an estate, you can obtain an ACT Grant of Probate regardless of where you live.
However, it will be more difficult for applicants who live outside the ACT to apply for a Grant of Probate as they will need a local address to be served with any claims against the estate.
Applicants will also need to complete an affidavit of search on the same day the application for a grant is filed, which requires being present before the Court registry.
When is probate required in the Australian Capital Territory (ACT)?
Obtaining a Grant of Probate is the first step you need to undertake in carrying out a deceased person’s wishes for the distribution of their estate.
You will need to apply for a Grant of Probate if the deceased owned real property in the ACT in their sole name.
If the deceased did not own real property in the ACT, you will still require a Grant of Probate if they resided in the ACT and owned significant assets in their own name.
When is probate not required in the Australian Capital Territory (ACT)?
A Grant of Probate is not required where the deceased did not assets in their sole name in the ACT. For example, a person may own most of their assets jointly with another person, which would then pass to the other joint owner automatically.
A person may also hold most of their assets in superannuation, which is not an estate asset.
Do I need to obtain probate?
If you are an executor of an estate, you will often need to obtain probate if the deceased owned assets in their sole name, and the relevant institutions who hold those assets (such as a bank) require the grant to release them to the estate.
In the event the deceased owned a small amount of assets (less than approximately $50,000), banks may waive the requirement for probate.
A Grant of Probate is essential where the deceased has an interest in real property in their sole name. This does not apply to property held as joint tenants.
Who is entitled to apply for a Grant of Probate in the Australian Capital Territory (ACT)?
The executor named in the deceased’s last Will is entitled to apply for a Grant of Probate in the ACT. In the event the first-named executor in a Will cannot fulfil their role, a substitute executor in the Will may apply instead.
How long does probate take in the ACT?
In order to apply for probate, an executor must firstly publish a notice of their intention to apply in The Canberra Times. An application for probate can only be filed with the ACT Supreme Court after 2 weeks and before 3 months of the publication of the notice.
Provided that an application is filed shortly after the expiration of the notice, it can take up to 2 weeks for probate to be granted to the executor.
Can you get a reseal of probate in the Australian Capital Territory (ACT)?
If probate has been granted in another jurisdiction, you cannot use this grant to deal with assets located in the Australian Capital Territory. You will need to obtain a ‘reseal’ of the grant in the Australian Capital Territory in order to deal with those assets, such as real property.
The Supreme Court of the Australian Capital Territory is able to reseal probates from all Australian states and territories, as well as from a select few countries such as those in the Commonwealth.
When do I need to get a reseal of probate in the ACT?
You will need to get a reseal of probate in the Australian Capital Territory before you can deal with the deceased’s assets located in the Australian Capital Territory, such as real property.
Probate Lawyers Canberra
Timothy Morton
Director – Wills & Probate Lawyer
Tim has acted in a number of complex probate litigation cases where the capacity and knowledge and approval of the willmaker was in doubt or where there have been concerns about whether the willmaker was unduly influenced by another person. Tim also regularly appears in the Guardianship Tribunal of the ACT Civil and Administrative Tribunal.
Tim holds a Master of Laws (Applied Law) majoring in Wills & Estates, he teaches and tutors Wills & Estates at the Australian National University, and he is a member of the ACT Law Society’s Elder Law & Succession Committee.