Probate is a critical step in administering the estate of a recently deceased person. Once a person has passed away, the assets which the hold in their personal capacity including bank accounts, shares, real property, cash, jewelry and furniture, must be distributed in accordance with the terms of their Will.
A Grant of Probate allows the Executor to wind up the affairs of the deceased so that the assets of the estate may be called in and distributed to beneficiaries.
There are a few key things the Court shall require proof of when making orders for a Grant of Probate:
- That the person has in fact passed away;
- If the deceased’s Will is their last true testament;
- What assets the deceased held and the liabilities the deceased owed as at the date of their passing; and
- If the Executor named in the Will is alive, willing and able to undertake the administration of the Estate.
To establish these facts, the Executor will have to supply the Court with a number of documents, including but not limited to, a certified copy of the Death Certificate, a detailed Inventory of the deceased’s Assets and Liabilities and the original Will. The intention to apply for a Grant of Probate needs to have been advertised and the application must be supported by a detailed Affidavit which is required to be sworn or affirmed in the presence of an authorised witness.
If the Grant of Probate is not ordered by the Supreme Court, then the Executor has no authority to administer the Estate and cannot transfer assets to beneficiaries. Once the Grant of Probate is ordered, the Executor can then commence the process of calling in the assets and distributing them in accordance with the terms of the Will as per the deceased’s wishes. This may include having to sell real property or transferring assets such as real property, shares or motor vehicles into a beneficiary’s name.
If the deceased left a Will but no Executor is available to apply for the Grant of Probate, then the major beneficiary (or beneficiaries) of the Will must make an application for what are known as Letters of Administration with the Will Annexed. Again, this must be supported by the relevant documents and an affidavit. Alternatively, if there is no Will at all, the deceased’s next of kin may apply for Letters of Administration upon an Intestacy (that is where the deceased passed away leaving no Will). Interestingly, around 45% of Australians do not have a Will and this can often lead to complexity, delay and unintended consequences as to the distribution of assets. A good reminder to have your estate plan in place.
It should be noted that on 1 October 2018, changes will come into effect with regards to the Supreme Court’s Probate filing fees. Fees will now be based on the value of the Estate on a pro rata basis. The Schedule of Fees will be released 10 days prior to the commencement date. This is likely to mean that applications for Grants of Probate and Letters of Administration will be more expensive.
An application for a Grant of Probate or Letters of Administration is a process best undertaken by a professional. At a time which is often difficult given the loss of a loved one, the confidence that comes from having an experienced lawyer involved in the process will give you significant peace of mind. Even in a simple estate administration, there can be matters which are not straightforward. If you are the Executor named in a Will and you need guidance through the estate administration process, contact our Wills, Estates & Succession Planning team to discuss how we can assist with undertaking and fulfilling the significant responsibilities and obligations of this important role.
If you require advice or further information in relation to any of the matters discussed in this article, please contact our Wills, Estates and Succession Planning team on 03 5273 5203.