The death of a loved one is often the start of a complex legal process. So here Rod Cunich guides you through the execution of a will.
What is probate?
Probate is a process where the executor nominated in your will applies to court to have the will validated, and the executor’s role is formally recognised to enable him or her to administer the deceased estate and distribute assets.
What does probate involve?
A court application seeking validation of the will (i.e. a grant of probate), and an accompanying affidavit executed by the executor, attaching a copy of the will and listing all the deceased’s assets and liabilities, are required. This affidavit also summarises who the beneficiaries are and what has been left to them.
Once probate is granted, the executor named in the will can deal with the assets and liabilities of the estate. Organisations, such as banks and company share registries, will accept a copy of the grant of probate as proper authority for the executor to deal with the assets.
Is a grant of probate always required?
Probate is not required in every case, especially where:
1. The nature of the assets doesn’t require a grant of probate. For example:
a) where the only assets are personal items that pass by possession
b) where the assets are all owned as joint tenants and pass automatically to the survivor
c) where the assets are located in a state that permits their transfer without a grant of probate.
2. The estate is a ‘small estate’ and the parties involved (such as banks) agree to a transfer of the assets without a grant of probate. In some states (e.g. Queensland) the Government policy has been to encourage the administration of estates without the formality of obtaining a grant of probate.
3. Legislation in the state in which the assets are located allows the executor to ‘elect’ to administer the estate rather than apply for probate. For example, New South Wales and Queensland have legislation that allows for such an election where the gross value of the assets in the estate falls below a prescribed amount.
What if you don’t have a will?
If you die without a legal will, the legislation in each state and territory has a formula that determines who will receive the estate, and this varies greatly from one state to another. An application similar to that for probate has to be made and is called an application for ‘letters of administration’. The court will appoint an administrator who plays the same role as an executor.
What is the process for obtaining a grant of probate or letters of administration?
The first stage involves gathering all the information about the deceased’s assets and liabilities and should include:
- the value of the deceased’s property
- the location of the deceased’s property
- the requirements of banks, share registries, insurance and superannuation companies
- whether the deceased was involved in court proceedings prior to his or her death that can be continued by the estate.
Where the deceased owned property jointly with others, or owned property through a company or trust, this property might not form part of the estate.
Once the information is gathered, an application for grant of probate is made to the courts. The application is usually dealt with administratively so no appearance in court is necessary. The courts can take as little as four weeks and as much as eight months to process the application.
Once probate is granted, the next stage of the process is the administration of the estate. This involves the executor/administrator collecting all of the assets, paying all the debts and then distributing assets to the beneficiaries. The timing of the administration is again dependent on the number of assets and complexity of the assets in the estate.
The administration can take as little as a few weeks, but in many cases can take 12 months or more. The most common period is about eight months.
If the will is challenged by someone, the probate application and the estate administration can be delayed until after the courts determine the dispute and this will take much longer, in some cases, years.
Does an executor need to engage a lawyer to obtain a grant of probate?
The short answer is ‘no’. The courts in each state and territory provide copies of the necessary formal documents and an outline of requirements at each supreme court. The procedures and technical requirements vary from state to state, some being simple and others a little more complex.
Many executors prefer to engage lawyers to assist them to minimise the risk of unnecessary delays and mistakes, and for certainty or simply to minimise the stress associated with the process. Others engage lawyers because the estate is complex, due to for example:
- the nature of the will, and/or
- the nature and/or extent of the assets, and/or
- family dynamics, and/or
- potential disputes.
My recommendation is that you consult a lawyer at the outset to determine what is involved and then make an informed decision about what, if any, part of the process you require a lawyer to assist you.
If you are preparing your will and wish your executor to engage the services of a lawyer in the process, you can express that wish in your will.
This information has been provided by Rod Cunich, author of Understanding wills and estate planning and should be considered general in nature – legal advice should be sought.
Rod can be contacted via his site Rodcunichlawyer.com, where you can learn much more, and buy a copy of his book.