Probate means the official “proving” (or establishing the validity) of a will.
When a person dies leaving a will, it is often necessary to obtain a Grant of Probate from the Supreme Court. When a person dies without a will, or with a will but no surviving named executor, then it is often necessary to obtain Letters of Administration from the Supreme Court.
An executor/administrator is the “legal personal representative” of the deceased person.
The process of applying for Probate or Letters of Administration can be complex. Identifying assets, writing to asset holders, completing Court forms, swearing affidavits, identifying debts, publishing notices, dealing with tax, understanding timeframes and finalising distributions are just part of the process. Having to deal with other family members can sometimes add to the stress. Executors have duties to the Court and to beneficiaries. You can be personally liable if you fail to properly carry out your duties as an executor or administrator of a deceased estate.
Bull, Son & Schmidt can help you understand the complexity of deceased estates and guide you through the process.
What is Probate?
Probate represents Supreme Court recognition of the will, as the effective will, and of the executor, as having the power to act on behalf of the estate. This recognition means that the executor has a right to deal with estate assets. Organisations such as banks and financial institutions will accept documents signed by the recognised executor.
What if more than one Executor is named in the Will?
Any or all of the Executors may apply for Probate. If an Executor does not wish to apply for Probate, the court can “reserve leave” to the Executor to apply at any time in the future. Alternatively, a person named as Executor may renounce their executorship completely.
What if the Executor has died?
If the Executor named in the Will has died, the Will remains valid and its terms will be carried out so that the beneficiaries under the Will still receive their inheritance. In this case, any beneficiary may apply to administer the estate but usually the beneficiary taking the greatest benefit will apply. This application is called “administration with the will annexed”.
Can the assets be dealt with as soon as Probate is obtained?
Once Probate has been granted, documents releasing assets can be signed and assets can be collected. Public notice must be given prior to lodging the probate application and then again prior to distributing the estate assets. The payment of liabilities and taxation issues are also usually dealt with prior to distribution. We can advise you on timeframes for distribution to beneficiaries.
Is there any death duty?
Death duties have been abolished.
Depending on the assets involved, if an estate is very small there may be no need to apply for Probate.
This sometimes occurs if most of the assets are jointly held. (For example, if the main assets of the deceased are property held as joint tenants and joint bank accounts, these assets may be transferred direct, without the need for a Grant of Probate.)
Sometimes however, banks or other institutions may insist on a Grant of Probate before they release funds.
What are the duties of the Executor?
In general terms, an executor’s duty is to take care of the deceased’s assets and property, see that debts and taxes are paid and to distribute the assets to the beneficiaries of the will. This includes:
- making an application to the Supreme Court for a grant of probate;
- notifying beneficiaries of their entitlements;
- collecting and preserving assets;
- payment of funeral expenses and debts;
- lodgement of taxation returns (for the individual and for the estate);
- distribution of assets to beneficiaries;
- administration of trust funds (particularly where there are minor beneficiaries); and
- maintenance of property or assets (this may include running a business, making sure appropriate insurance is in place etc).
How long will it take?
This varies, depending on the nature of the assets, complexity of the estate and the identity of the beneficiaries. Contact us to discuss the steps involved and the likely timeframe. We can also explain the risks for executors, and the legislative protections offered by the Succession Act and the Wills Probate and Administration Act.
What if there is no will?
If a person dies without a will, it is necessary to apply to the Supreme Court for Letters of Administration.
Legislation sets out rules governing how the deceased’s assets pass to next of kin.
In place of an executor, an administrator (usually the next of kin of the deceased), is appointed by the Court.