When a person dies, somebody has to deal with their estate.
An executor is chosen by the person making the will to carry out their wishes in managing their estate and is responsible for the administration and distribution of assets to beneficiaries according to those wishes.
An executor may be a friend, a relative, or a professional.
What is Probate?
The Executor may be asked to prove they are authorised to administer the estate before assets can be released. That authority is a ‘grant of probate’.
To obtain a Grant of Probate, the executor named in the Will must apply to the Supreme Court. If the application is approved, the court provides a Grant of Probate which confirms that:
- The deceased left a Will;
- The Will is valid; and
- The executor has the authority to administer the estate.
It is not always necessary to get a Grant of Probate. The need for a Grant by the Courts has been relaxed over the years although an application for a Grant is still however necessary in many cases.
Do I need Probate?
To determine whether a Grant is needed, the person appointed as executor in the will must contact the organisations with which the deceased held assets to determine the organisations requirements for transfer of those assets to the executor or the beneficiaries, this is best done through our office.
Where a dispute may arise over the estate a person appointed as executor would be wise to apply for probate. Where a person does not have the right to deal with an estate, the person can be liable to beneficiaries.
Anyone appointed an executor must in the first place determine the deceased’s assets and debts. Once that is known you can then determine how the assets can be transferred to the beneficiaries.
In making an application to the Supreme Court, first you must:
- Advertise the application in a local newspaper
- Lodge a formal application with the Court with an affidavit (a sworn statement) containing
- Proof that you have advertised the application
- Provide details about the will
- Provide certain details about the deceased
- The original will
- Do a search of the Registry records to indicate a previous Grant has not been made; and
- A death certificate.
After Probate is Granted
After the Grant from the Supreme Court Registry has been made, it is then sent to the various places where the deceased’s assets were held. Asset holders will then release or transfer the deceased’s assets into the executor’s name or the name of the beneficiaries.
Any debts of the estate must be paid before the estate is distributed. Then the executor distributes the estate in accordance with the will.
The process of obtaining a Grant of Probate can be a daunting task for those who are not familiar with navigating the terminology and legal procedures. Tetlow Legal are experienced in making applications for a Grant of Probate in both the ACT and NSW and can assist you with making an application the relevant Supreme Court.