Following the death of an individual who owned assets within a state or territory, it will generally be necessary, where the deceased person owned real property or held assets over a certain amount (each asset holder will have their own threshold), to obtain a grant of representation in that person's estate. It may also be necessary to obtain a grant of representation where creditors or family provision claimants are identified.

If a person died leaving a will, you would usually apply for a grant of probate. If the person died without leaving a will ("intestate") you would apply for a grant of letters of administration.

This topic deals with obtaining a grant of probate. A grant of probate is made in either common or solemn form. The usual application is for a grant of probate in common form, which is the result of non-contentious proceedings and the application is dealt with in the absence of the parties. A grant in common form can be revoked on application to the relevant court by an interested party.

Conversely, a grant in solemn form is the result of contentious proceedings and will usually involve parties being joined in the proceedings which will be heard by the relevant court. All persons who are parties to the proceedings or who were aware of the proceedings are bound by the grant, unless there are exceptional circumstances such as fraud.

There are three basic requirements before a grant of probate can be made:

• property situated within the state or territory in which the grant of probate is made (not necessary in some jurisdictions); and

• a valid will; and

• the death of the will maker.

See When can probate be granted?

A grant of probate is the confirmation by the Supreme Court of that state or territory that the will annexed to the probate document is the last valid will of the deceased.

A grant of probate provides the appointed executor with the authority to deal with the assets and liabilities of the deceased and to administer the estate in accordance with the terms of the will and the applicable law. A phrase often coined is that once a will is admitted to probate, the executor has the power to stand in the deceased’s shoes in a legal sense; a grant is therefore a powerful document.

Prior to a grant of probate, the assets of the deceased are “frozen” (except in very limited circumstances, such as allowing payment of the deceased’s funeral expenses — see the Administration of estates topic).

An application for a grant of probate can be either a contested or uncontested application. For contested applications, see Contested proceedings.

See Why is it necessary to obtain a grant of probate?

The role of the practitioner is to advise the executor of his or her duties and obligations and to obtain instructions sufficient to make an application to court for the grant of probate.

It is important that the executor understands his/her obligations and provides the legal practitioner with full and accurate instructions. These instructions will form the basis of the affidavit of executor which the executor will swear or affirm in order to obtain the grant of probate.

See Obtaining instructions for probate application.

It is necessary to file the original will of the deceased with the probate application. All original documentation will be retained by the Supreme Court.

It may be necessary to make enquiries to ascertain the location of the original document/s.

If the original will cannot be located, it may be necessary to make an application for probate of a lost will — see Lost will.

See Access to and obtaining the will.

In NSW, it is important that all known assets are disclosed in the probate application as failure to do so may require further disclosure at a later date. The inventory of property is annexed to the affidavit of the executor. When probate is granted, the inventory of property will become part of the probate document and will therefore be available to all beneficiaries.

The beneficiaries will thus be aware of the gross value of the assets disclosed in the application for probate.

In Victoria, it is important that all known worldwide assets and liabilities are disclosed in the probate application as failure to do so may require further disclosure at a later date. The inventory of assets and liabilities is annexed to the affidavit of the executor. When probate is granted, the inventory of assets and liabilities will not become part of the probate document, however it is possible to obtain a copy of the inventory from the Probate Office once probate has been granted.

In Queensland, there is no requirement to disclose the assets and liabilities of the estate to the court at the time of making an application for a grant of probate.

In WA, it is important that all known moveable assets worldwide are disclosed in the probate application and any real property with WA as the inventory of property is annexed to the affidavit of executor. The grant of probate will refer to the gross value of the assets indentified in the affidavit of the executor.

In SA, it is important that all known assets (including those outside SA) are disclosed as failure to do so will require further disclosure at a later date and may then result in delays to the finalization of the estate. The statement of assets and liabilities is annexed to an affidavit of an executor separate to the executor's oath.

In Tasmania, it is important that all known assets are disclosed in the probate application as failure to do so may require further disclosure at a later date. The inventory of property is annexed to the affidavit of the executor. When probate is granted, the inventory of property will become part of the probate document and will therefore be available to all beneficiaries.

In the ACT, it is important that all known assets are disclosed in the probate application as the inventory of property is annexed to the affidavit of executor. The grant of probate will refer to the gross value of the assets indentified in the affidavit of the executor.

See Identifying assets and liabilities.