Probate – who needs it?

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The death of a loved one can be an overwhelming, confusing and busy time. Although nothing will remove the sting of grief, unnecessary stress can be reduced by understanding the steps involved and seeking the right advice. Most of the angst that accompanies the administration of an estate stems from being uncertain as to who the right person to make decisions is, what documents are needed and how to navigate the system.

Who has authority to make decisions after death?

Where there is a will, the executor has a key role in administering the estate. The executor has the responsibility of arranging the deceased’s funeral, securing the deceased’s assets, applying for a grant of probate (if necessary), making sure all of the deceased’s debts are paid and distributing any remaining assets according to the terms of the will. If there is more than one executor, they need to work together to make joint decisions.

Where there is no will, the Court must appoint an administrator to deal with the deceased’s assets, usually the next of kin.

If the deceased had made an Enduring Power of Attorney during their lifetime, the power stops upon death and the attorney no longer has authority to act.

What is probate?

A grant of probate is a court order that confirms the validity of the deceased’s last will.

Rather than leaving it up to the teller at the bank or the land titles clerk to assess whether the will was validly signed, an application for probate ensures that this important legal process is carried out by the Supreme Court.

Once granted, probate is also evidence that the executor has authority to act on the deceased’s behalf.

Where the deceased did not leave a will, or there is no executor named in the will, then an application for letters of administration needs to be made instead.

When is probate required?

The short answer is that it depends on the assets of the estate as to whether it is necessary to obtain a grant of probate.

Where the deceased held land in their sole name, or with another person as tenants in common, then it will always be necessary to obtain a grant in order to deal with the land. Other institutions, such as banks or share registries, each have their own threshold for when they will require a grant before releasing funds.

In some circumstances, it is possible to deal with non-estate assets, such as property owned as joint tenants, or superannuation or life insurance for which there is a nominated beneficiary, without needing to obtain a grant of probate.

Each Australian State and Territory has different rules relating to probate and you should therefore seek legal advice as to the appropriate process in the jurisdiction where the deceased lived and owned assets.