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Probate Registry In Canberra

When someone passes away in Canberra, it is necessary for an individual, either an executor or administrator, to assume legal authority over his or her deceased estate. It is often necessary in this circumstance for the deceased’s personal representative to apply to the Probate Registry in Canberra for a probate grant to administer the estate, either according to a will or under the provisions of intestacy legislation.

Probate Registry Canberra

The Probate Registry is a division of the Supreme Court in Canberra that assesses probate applications and holds records of the issued grants in line with the Court Procedure Rules 2006. The Registrar has statutory authority to issue probate grants when appropriate, relating to the deceased estate of any resident of the Australian Capital Territory, or any deceased who owned real property within the Territory.

Probate Registry Canberra: types of grants

The Probate Registry in Canberra issues several different types of probate grants. The standard form is a Grant of Probate, which is issued to an appointed executor in circumstances where the testator left a valid will. Alternatively, if there is a valid will but there is no executor willing and able to make the probate application, an appropriate applicant can ask the Probate Registry in Canberra to issue Letters of Administration With Will to confirm their appointment as administrator of the estate.

When a deceased passes away before making a will, an administrator can still apply to the Probate Registry in Canberra for a probate grant. The proper form in these circumstances is Letters of Administration – No Will, which confers legal authority to dispense the estate according to the intestacy provisions contained in the Administration and Probate Act 1929.  

There is also provision to cover a circumstance when another jurisdiction in Australia has already issued a probate grant to someone to administer a deceased’s estate. In this event, most of the assets of the deceased estate will be located outside of the Australian Capital Territory, but if the deceased owned real property within the ACT, it may be appropriate to apply for a Reseal of a Foreign Grant. An applicant can present the foreign grant to the Supreme Court to authenticate the grant for use within Canberra.

Applying to the Probate Registry in Canberra

An application to the Probate Registry in Canberra must follow statutory prescribed parameters. When someone files for a Grant of Probate, every person named in the will as executor needs to be a party to the application. If any executor has not signed the application, then the accompanying sworn affidavit must explain and provide proof of the discrepancy, ie explain that a named executor has passed away and provide evidence of same, such as by appending a death certificate.

Once the personal representative has checked that there is no competing grant in the Probate Registry, he or she can lodge a Notice of Intention to Apply for Probate. The applicant must fill out the Notice with precise attention to dates, names and particulars. Any inaccuracies will delay the grant application. The applicant must have the following information and documentation at hand in order to prepare the Notice and the application:

  • Current testamentary documents, including the current will and codicils of the deceased;
  • The date that the deceased passed away;
  • If a reseal application, details about the issuing authority and the type of grant; and
  • The names and residential addresses of every executor.

The applicant must wait fourteen days after the deceased’s death to publish the Notice, but they must proceed within three months of the death. During the notice period, eligible parties can dispute the validity of the will, produce a more current will, or prepare a Family Provision Claim against the estate. This is also the time that a creditor can ask the estate to discharge an unpaid debt.

Is it always necessary to apply to the Probate Registry?

A personal representative may be able to avoid applying to the Probate Registry in a few circumstances. If the estate has a limited monetary value with few assets, there may be no practical reason to secure a probate grant. Typically, an executor or administrator needs a probate grant before financial institutions will release substantial assets to their control. However, this is not required in every instance. For example, a bank will often release funds held in a bank account if the balance is low, and the personal representative is willing to take legal responsibility for any future claims from beneficiaries, creditors or another executor. In addition, if the deceased shared ownership of property and bank accounts with a spouse or other person, these will be legally transferred to the survivor upon the death of the joint tenant or fellow signatory. As such, in these circumstances a grant of probate is not required to finalise the estate.

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Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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