Some Questions You Might Have About Probate in Australia

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Probate refers to a recognition by a court that a will of a deceased person is legally valid. Probate court refers to the legal process where a will and its provisions are presided over by a judge, who makes the final decision about the will and its validity, how it's worded, a person's estate, and so on. Putting a will through probate court may be necessary if there are conflicts over the will or if certain financial institutions insist on it being done. Note what is meant by that and some other common questions you might have about probate in Australia.

Does a will always wind up in probate court?

Not necessarily; if there are no disagreements over the will, it may be not necessary for it to go through a court system to be legally recognized. Also, the law may simply cover certain aspects of inheritance; for example, the title or deed of a home held jointly between two persons is typically just transferred into the name of the second, surviving individual. As he or she was a legal owner of that property before the other individual's death, there is usually no question about whether or not it should pass on to another heir.

However, it's not unusual for a bank or other such institution to insist that a will go through probate before they release funds from that bank to heirs and survivors. This protects them from any future lawsuits from anyone who may contest the will and claim that those funds should have been dispersed to them. Someone else might contest the will and, if so, you may need to go through probate court to have a judge make a determination over the will's validity, the wording of the deceased, if the law covers certain matters such as mentioned above, and so on.

Can anyone apply for probate? 

The executor of the will is the only person who can apply for probate, but note that this is different than contesting a will. If you're not the executor of a will but you feel that the will is not valid, you can hire an attorney to formally contest it. This is usually when an executor then applies for probate, so a judge can make a decision, as mentioned above. However, don't assume that because you're not the executor and cannot apply for probate yourself that you cannot contest the will, as these are two separate processes.