When a person dies, somebody has to deal with their estate.
An executor is the person chosen in the Will of the deceased to carry out their wishes and manage their estate after they pass. They are 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 have authority 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 however a Grant is still 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 their requirements to transfer those assets to the executor or 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 they can become liable to beneficiaries.
To make an application to the Supreme Court 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
- Details of the Will
- Certain details about the deceased
- The original Will
- A search of the Registry records to indicate a previous Grant has not been made; and
- A death certificate.
Depending on the exact circumstances and complexity of the estate further documentation may be required.
After Probate is Granted
After the Grant from the Supreme Court Registry has been made, it is sent to the various organisations that held the deceased’s assets. 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 daunting for those not familiar with navigating the legal processes. Tetlow Legal are experienced in making applications for a Grant of Probate in both the ACT and NSW and can assist you in making application to the relevant Supreme Court.