Probate and Letters of Administration: What Is It?

So you have been named as an executor of a Will. Among various other duties including arranging funerals and dealing with assets and debts, you may need to obtain a grant of probate.

 

Probate is, put simply, an order of the Supreme Court formally recognising the validity of a will.

 

The grant of probate is the executor’s authority to deal with assets of the estate. It is usually granted without the need for any attendances at the Court unless there is any dispute as to the validity of the will for reasons such as possible lack of testamentary capacity, fraud or undue influence being exerted on a will maker.

 

An application for a grant of probate usually includes an oath sworn by the executor that they are indeed the person or persons named in the Will to be the executor, that they will administer the estate in accordance with the terms of the Will and that they will report to the Court as to their administration of the estate if required to do so.

 

A grant of probate may not be required depending upon the nature and value of the assets owned by the deceased person. Cases where this may apply could be if the value of the assets are not high (for example bank accounts or shares below a value of $25,000), where the assets were owned in trusts or owned jointly with another party (for example joint bank accounts or property).

 

If a deceased person owned an interest in real estate in their sole name then probate will be required before the executor can deal with that real property.

 

Probate typically takes around 6 weeks to be granted from lodgement of the application.

 

What if there is no will?

 

When a person dies without a will they die intestate and their estate is generally distributed in accordance with a statutory order of distribution. An eligible person (determined by their relation to the deceased persons such as a spouse, parent, sibling or child) usually applies for a grant of Letters of Administration which, like a grant of Probate, formalises the applicant’s authority to deal with the estate assets.

An application for a grant of probate or letters of administration must be accompanied by a statement of assets and liabilities of the estate wherever they may be situated.

 

Changes to the processes of the Probate Registry: Transition to Digital Systems

 

Like many other things- the Courts are going digital.

 

The particular section of the Supreme Court that handles all applications for Probate known as the ‘Probate Registry’ is launching its new Electronic Court Management System (ECMS) on 26 November 2018.

 

To enable the Courts to prepare for the transition from paper probate applications to the new digital probate lodgement system, the Probate Registry will not be accepting any applications for probate between 15 October 2018 to 23 November 2018.

 

What could this mean for you?

 

We recommend that if you are ready to lodge your application (or might be ready to lodge by 12 October 2018) that you lodge it as soon as possible before that date. If not, you will need to file your application after 23 November 2018 using the new ECMS.

 

And of course we can always advise and assist you! Call us today on 8344 6422 and ask for Joel.