Do you really need Probate?

Before you set about applying for Probate, ask yourself if you really need it.

 

Most people have only one reason to apply for Probate, which is that organisations (like banks or retirement villages) will not release the assets of a person who died until the Executor presents the Probate certificate.

 

If an asset is owned jointly with a husband / wife who is still alive, it should not be necessary to get Probate for the release of that asset.

 

So before you spend time and money applying for Probate, make a list of all assets owned by the person who died, and find out if you get them released without Probate. They usually fall into these categories:

• Real estate
• Accommodation bonds for retirement villages
• Cars
• Superannuation entitlements
• Bank accounts
• Shares.

Start with REAL ESTATE

If the deceased owned real estate you need to find out HOW they owned it, and you find that out from the Certificate of Title. You might have found the Certificate of Title already, but if you can't find it you can order a copy of the title from www.land.vic.gov.au.

• Were they the SOLE OWNER ("Sole Proprietor") of the real estate? If so, you need Probate to transfer ownership to anyone else.
• Did they own the real estate as a "JOINT PROPRIETOR" (sometimes called "joint tenant", even though it has nothing to do with renting).
• If they owned the real estate as a Joint Proprietor, is the other Joint Proprietor still alive? If they are, you DON'T need Probate to transfer ownership.
• But if they owned only PART of the real estate as a "TENANT IN COMMON" then you DO need Probate to authorise the transfer of their share.
  

If you find you need Probate to transfer real estate ownership, that's it - you apply. If you don't need Probate to transfer real estate, see if you need it to release other assets, like:

• Retirement village accommodation bonds (which usually require Probate)
• Superannuation benefits
• Motor vehicles
• Bank accounts

Motor Vehicles

Then there are motor vehicles. It is our understanding that VicRoads will transfer ownership to a surviving husband/wife WITHOUT Probate, but they require Probate to transfer a vehicle to anyone else. The VicRoads website seems clear enough about this, yet people sometimes tell us that they get different stories from VicRoads staff. You can check the written policy at the VicRoads website. (Or you can see our summary of VicRoads policy here - see summary).

Bank Accounts

There are no uniform rules for them - every bank has its own policy. Some will release only $5,000 without Probate, others $20,000 and some even more. To find out, you ask the bank.

Shares

If the deceased estate contained only shares, they could be the thing that makes it necessary to apply for Probate. Check with the share registry.