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What is Probate?
Where there is a valid Will, a Grant of Probate issued by the Probate Division of the Supreme Court authorises the executor to take control of the deceased’s assets as trustee of the estate and, after paying any debts, distribute the assets in accordance with the Will. In order to get the authority to do this, they usually need to obtain a legal document called a 'Grant of Probate'.
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 applicant/s. These are supported by documents to prove their relationship to the deceased and therefore entitlement to apply and inherit.
Evidence will include the original Will and death certificate, as well as marriage certificates, birth certificates and other evidence depending on the circumstances.
To protect the interests of those who hold the deceased's assets (for example banks) the executor may be asked to prove they are authorised to administer the Will before the assets can be released. The Grant of Probate is the proof required.
The key to satisfying the needs of all the stakeholders is the speed at which the estate can be administered and this is where solicitors experienced in Probate and Estate Planning can play a crucial role.
Broadly speaking, Probate involves:
- Placing the necessary public advertisements
- Serving notice on the Public Trustee and
- Preparing Court forms and lodging them in Court
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Is Probate always necessary?
People and businesses dealing with executors and estates may insist on the certainty of Probate before they rely on the Will or the power of the Executor.
The nature of the assets and their value will determine whether Probate will be required. It may be possible to deal with all of the assets and liabilities without anyone requesting Probate. Real estate or significant amounts of money are likely to require Probate.
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How are estates administered?
During the first few months from the date of death, the executor will identify and protect the assets of the estate, take control of the affairs of the deceased and prepare to apply for Probate of the Will.
Once Probate has been granted or it is determined that Probate is not necessary, the executor will commence the process of collecting assets and paying liabilities. If necessary a tax return will need to be prepared and lodged.
Once the debts of the estate are cleared and the gifts under the Will are made, and the estate is distributed to the residuary beneficiaries.
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Are there any circumstances when probate is not required?
If all assets are held in joint names a probate application is not required. If the deceased has made a nomination for their superannuation funds, and that is the only asset of the deceased, probate may not be required. If the estate is less than $10,000.00 you may not have to apply for probate. As always – seek legal advice.
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What is estate management?
After the Grant of Probate has been obtained, the various assets comprising the deceased’s estate must be gathered and distributed according to the instructions in the Will. This can be a somewhat bureaucratic process, particularly if superannuation and insurance are involved, and relying on the experience of solicitors 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 and legal issues. It may also be necessary to involve the deceased’s or your own accountant and financial planner. The costs of retaining these advisers to assist you will normally be met out of the estate.
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