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Understanding Wills and Probate

Understanding Wills and Probate

Probate is a legal process in which the Court verifies the authenticity of the deceased’s last Will, ensuring it reflects their final wishes. It grants the executor(s) named in the Will the authority to manage and distribute the deceased’s assets as outlined. The Court also ensures that the executor(s) are alive, willing, and capable of distributing the estate, confirms the document is indeed the deceased’s last Will and checks for any objections to its validity. Here at Legally Yours, our lawyer members understand that navigating the complexities of probate can be a deeply personal and sensitive journey. This article is to guide you through this process with clarity and care, honouring the intentions of your loved one.

What is the process of applying for a grant of probate?

The process of obtaining a grant of probate varies slightly across states and territories, but in general involves several key steps, including:

  •       Advertising the executor’s intention to apply for a grant or submit a notice of intention to apply
  •       Conducting inquiries to determine the assets and liabilities of the estate, often involving checks of various registers.
  •       Preparing an application for probate to be filed with the Supreme Court. This application typically includes the deceased’s will, a death certificate, an estimate of the estate’s assets and net value, and an affidavit from the executor affirming their commitment to administering the estate as per their obligations.
  •       The Court may make requisitions if further information is necessary.
  •       Once the court is satisfied, a grant of probate is issued to the executor(s) enabling them to administer the estate according to the Will.

The process will be more complicated if there are objections lodged against the making of a grant, for example, if there is a dispute about the validity of the Will.

Do you always need a grant of probate if someone dies?

The need to obtain a grant of probate depends on the nature and value of the assets left by the deceased. In Victoria, an executor typically will not require probate to deal with an asset that is under $50,000 in value. However, different asset holders and institutions (e.g. banks) may have their own policies with different thresholds. For assets like shares or real estate, probate is typically necessary for the executor to deal with these assets. 

Is obtaining a grant of probate harder if the deceased person doesn’t have a Will?

When a person dies and does not have a Will, the prospective administrator would have to apply for Letters of Administration as opposed to a grant for probate. An application for Letters of Administration generally involves additional steps, including:

  •       Determining who has the best right to apply for a grant, in accordance with the jurisdiction’s intestacy legislation.
  •       If multiple individuals have equal rights, they may need to apply jointly or provide a renunciation if some choose not to apply.
  •       Proving to the Court efforts made to locate a Will of the deceased.

When is it necessary to obtain letters of administration?

Letters of administration are needed when someone passes away without leaving a will, a situation known as dying “intestate”. In such cases, the estate of the deceased is distributed according to the laws of your region. For instance, if the deceased leaves behind a spouse or domestic partner but no children, the entire estate goes to the surviving spouse or domestic partner. If there are both a spouse or domestic partner and children, the spouse or domestic partner receives the first $100,000 plus half of the remaining estate, while the children share the other half equally. When a will exists but is incomplete or partly invalid, it may be necessary to apply for letters of administration with the will annexed. This type of administration seeks to fill gaps where the will falls short, such as naming an executor, while still respecting the deceased’s original intentions.

Q: What is Probate?

A: Probate is the legal process of proving and registering a deceased person’s will with a probate court. It involves validating the will and appointing an executor to manage the deceased’s estate according to the terms outlined in the will.

Q: When do you need to apply for probate?

A: You typically need to apply for probate when the deceased person owned assets solely in their name, such as property, bank accounts, or investments, that require legal transfer to beneficiaries.

Q: What are probate fees?

A: Probate fees are the costs associated with applying for probate, which may vary depending on the jurisdiction and the size of the estate. These fees cover the court’s processing expenses and are usually paid from the estate’s assets.

Q: What is a grant of probate?

A: A grant of probate is a court order that authorizes the executor named in the will to administer the deceased’s estate. It provides legal authority to deal with the assets, pay debts, and distribute property to beneficiaries as per the will’s instructions.

Q: How do you apply for probate?

A: To apply for probate, you typically need to complete an application form, gather required documents such as the original will, death certificate, and asset details, and submit them to the probate office or court along with the necessary fees.

Q: What is the role of an executor in probate?

A: An executor is a person appointed in the will to carry out the deceased’s wishes, manage the estate, pay debts, and distribute assets to beneficiaries. They have a legal obligation to act in the best interests of the estate and its beneficiaries.

Q: How does administration with the will annexed differ from probate?

A: Administration with the will annexed occurs when the deceased has left a will, but the named executor is unable or unwilling to act. In such cases, a court appoints an administrator to oversee the estate rather than granting probate to the executor.

Q: What is the jurisdiction for probate matters?

A: Probate matters are typically handled by the Supreme Court in each state or territory, which has the authority to grant probate, issue letters of administration, and oversee the legal processes related to deceased estates.

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This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.

This article has been composed utilising content provided by Milton Lawyers from the Legally Yours network.