Grant of Probate
Where there is a valid Will, a Grant of Probate issued by the Probate Division of the Supreme Court authorises the executor/s nominated in the deceased person’s Will to administer the estate in question. The Grant of Probate authorises the executor/s to take control of the deceased’s assets as trustee/s of the estate and, after paying any debts, distribute the assets in accordance with the requirements of the Will.
The process of obtaining Probate is like a court case, with the court dispensing with the need for a hearing in favour of written evidence via affidavits from the executor/s nominated in the deceased’s Will.
Attached to the affidavit is the evidence required by the court, in particular the original Will and death certificate, and a detailed and accurate list of deceased’s assets, supported by valuations. In some circumstances it may also be necessary to include marriage certificates, birth certificates and other evidence depending on the circumstances.
The key to satisfying the needs of beneficiaries is the speed at which the Grant of Probate, which authorises the executor to implement the Will, can be obtained. The speed and efficiency of this process can be greatly enhanced where RetireLaw has prepared the Will in question. We have also developed a sophisticated management approach to obtaining a Grant of Probate – the essential first step in transferring legal ownership in the deceased’s assets to the beneficiaries.
Our Probate service has been developed in recognition that, for many, the old saying that “time is money” is a reality and yet too often the process extends over many months, in our view unnecessarily. RetireLaw’s Probate service ensures that in most cases the process is reduced to a matter of weeks.
Being an executor
The executor’s role includes:
- arranging the funeral
- identifying, protecting and gathering in the deceased’s assets
- identifying the deceased’s debts
- applying for Probate, generally via a solicitor
- managing the estate’s tax issues
- holding the deceased’s assets as a trustee pending finalisation of the estate after Probate is granted
- selling and disposing of estate assets, collecting and holding the proceeds in trust pending finalisation of the estate
- finalising the deceased’s debts, paying funeral and testamentary expenses
- distributing the net estate to the relevant beneficiaries in accordance with the Will
- defending any legal claim against the estate
- handing over to the trustee of any trust created by the Will the responsibility for the ongoing administration of the trust
The executor becomes the legal owner of the estate assets until they are distributed to the beneficiaries or the trustees of Will trusts, and may also be personally responsible for ongoing administration of the deceased person’s estate.
Estate Administration
After a Grant of Probate has been obtained, the various assets comprising the deceased’s estate must be gathered in and distributed according the instructions in the Will or the statutory formula applying in intestacy.
This can be a somewhat bureaucratic process, particularly if superannuation and insurance are involved, and RetireLaw’s experience in managing this process can streamline it considerably.
While it is not essential to retain solicitors for estate administration, it does require a degree of experience and confidence in managing matters that impact on other people’s money, and dealing with quite complex paperwork as well as tax and legal issues.
It may also be necessary to involve the deceased’s or the Executor’s own accountant and financial planner. The costs of retaining these advisers to assist you will normally be met out of the estate. Common tasks of estate administration leading to distribution of inheritances are likely to include:
- transfer or sale of property
- release of funds in bank accounts
- transfer or sale of shares
- distribution of superannuation funds
- insurance claims
Letters of Administration
When a person dies intestate, that is, without leaving a Will, the estate is distributed via a statutory formula intended to provide for the needs of close family members.
A Grant of Letters of Administration must be obtained before the estate can be distributed. The application procedure is similar to that followed if there was a valid Will, however more evidence will be required than for Probate applications. The application is supported by documents to prove the applicant’s relationship to the deceased and therefore entitlement to apply and inherit.
For further information on recent changes to the Succession Amendment (Intestacy) Act 2009 and how these changes could affect your family visit our Recent Changes To The Law page
Please Note:
This information is a general nature and would represent what is likely to happen in the majority of families. However, circumstances vary from family to family and both executors and beneficiaries may need to obtain legal advice on their responsibilities, rights and entitlements.
Family members, or those who have been dependant on a Willmaker, who feel that they have not been adequately provided for have rights under the Family Provisions Act to lodge a claim against an estate. RetireLaw does not offer a service for such persons but can recommend lawyers who specialise in making such claims.
