Probate
After someone dies, somebody needs to deal with and finalise the deceased person’s affairs. This is known as estate administration. The executor named in a Will, or an administrator appointed by the court (if the deceased died without a valid Will) is generally responsible for this. If you are an executor or administrator, we can guide you through the process and provide expert advice so you can effectively manage your role. We can help with:
- advising executors, administrators and trustees about their duties and rights
- applying for probate of the Will in the Supreme Court
- applying for letters of administration
- interpreting the Will of the deceased
- identifying estate assets and liabilities, and obtaining valuations of property
- collecting estate assets including superannuation, bank funds, shares, outstanding loans, and insurance payouts
- advising on family and testamentary trusts and the administration of trust funds
- selling or transferring estate property
- coordinating the information required to prepare estate tax returns
- family mediation and negotiation
- contesting Wills and defending estate litigation in the Supreme Court
What is probate?
Probate is a grant made by the Supreme Court which recognises the validity of a deceased person’s Will and provides authority for the executors named in it to administer the estate. Probate is required to deal with certain assets of an estate and to obtain bank funds over a certain amount. In some cases, probate may not be required, and we can advise you whether a grant of probate is necessary or recommended in your circumstances.
The executor of the estate must follow the applicable process to apply for probate and the application with supporting documentation is filed with the Supreme Court. The original Will must be produced, along with a certified copy of the death certificate, and an inventory of assets and liabilities. The intention to apply for probate must be advertised and the relevant application and affidavit completed. The filing fee is determined on a pro-rata basis according to the value of the estate.
What are letters of administration?
When a person dies without a valid Will (referred to as dying intestate), or a person appointed as an executor under a Will is unable to fulfil that role, an interested person may apply to the Supreme Court for letters of administration. A grant of letters of administration allows the interested person, known as an administrator, to deal with the deceased’s estate in the same manner as an executor would. In practice, the applicant will usually be a spouse, partner, child, or other close relative of the deceased person. The estate will be administered according to the rules of intestacy which sets out a specific formula for the distribution of the deceased person’s assets.
The role of executors and administrators
Executors and administrators have many obligations and duties when administering an estate. Their primary role is to deal with the deceased’s assets and liabilities and to finalise the estate according to the Will or the rules of intestacy.
There are numerous steps involved in completing these tasks including: identifying and protecting assets, claiming superannuation and insurance benefits; closing various accounts and collecting funds; pursuing and paying any estate debts; paying the funeral expenses; distributing assets and transferring property to beneficiaries.
Applying for probate and administering an estate can be complex. Accordingly, many executors and administrators seek guidance from a lawyer to ensure they properly fulfil their duties and are protected from personal liability, particularly when dealing with complications or claims made on the estate.
Dealing with estate disputes
Unfortunately, not all estates are finalised without a dispute arising, whether between nominated beneficiaries or as is often the case, would-be beneficiaries. Disputes may also concern the validity of a Will or the suitability of a person to act as an executor. Estate disputes can be complex, contentious, and emotional. If you find yourself facing an estate dispute, please call us for strategic legal advice and guidance.
If you need assistance, contact [email protected] or call 03 9546 8155 for expert legal advice.