One of the first duties of an executor named in a will is to obtain probate where the estate’s assets are over $15,000.  Generally speaking, as the current asset threshold for probate is so low, most modern estates now require probate. 

Probate is the Court-issued document that gives the executors the legal authority to deal with the estate and carry out the terms of the will. Executors cannot rely on powers given to them under an Enduring Power of Attorney as these cease to have legal effect when the person passes. Until legal authority is granted by the Court through probate, very little is able to be actioned by the executors in relation to the estate’s assets and liabilities. It is important to find out what you can and can’t do before you take any steps that may complicate matters.

How long before an executor can deal with the estate?  Currently, the High Court is experiencing a significant backlog and probate or Letters of Administration are taking up to three or four months to process once filed. Where the application is complex, processing times may increase significantly. 

Prior to Covid, applications for probate took approximately six weeks to be processed. The High Court has advised that there are various reasons for the current delays, which include staff shortages, the ongoing effects of Covid isolations, general absences among staff for sickness, and a lack of fully trained registrars. 

These delays can affect administration of the estate significantly, as until probate is granted the bank accounts of the deceased are frozen and assets are unable to be dealt with. Freezing of the bank accounts can result in delays to payment of expenses such as rates, water, and insurance where the deceased owned a property, particularly where family of the deceased are unable to cover such expenses from their own funds. It also means that assets such as property are unable to be sold, as executors do not have legal authority to deal with estate assets until probate is granted.  However, there are ways to overcome some of these issues should the need arise and you should seek advice from an estates practitioner. 

For beneficiaries, there can be a longer delay. To protect the executors against a possible claim, there is a statutory six-month non-distribution period that does not start until probate is granted. Accordingly, in many circumstances, beneficiaries are having to wait a minimum of 10 months until distribution can be made. Communicating with beneficiaries, and managingtheir expectations, is becoming more important with the longer delays.

The High Court has advised that they have taken measures to rectify the backlog, such as emplying and training more registrars and delegating applications throughout the country in an effort to speed up processing times. To date, these measures do not appear to be reducing processing times significantly. However it does take some time to train new registrars and we hope to see faster processing soon.

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