Probate is an order of the Supreme Court that gives a person, usually the executor named in a Will, the legal right to administer the estate of the deceased person. Probate is a legal process that certifies that a Will is valid, appoints a person (usually the person named in the will as executor) and allows the will to be acted upon. Without a Grant of Probate, an executor does not have the authority to administer the estate, nor would they be able to transfer any assets to beneficiaries named in the Will.
It is the executor’s duty to prove to the Court that the Will is legally valid. For this to happen, it must be proved that the Testator of the Will has actually died and that the Will being presented is the final version of the Will and was made in accordance with the law.
Probate is necessary when the deceased person leaves a Will and assets that can only be dealt with via a grant of Probate. Real estate cannot be transferred to beneficiaries of a Will unless Probate has been granted and most financial institutions, share registries and accommodation providers (holding security bonds etc) will also insist on a Grant of Probate before dealing with assets.
If a person dies without a will, the application can be made for the appointment of an Administrator pursuant to a Grant of Letters of Administration. To be clear, a person’s estate is not forfeited (as is often believed) because a person dies without a will.
The Probate Process
To apply for a Grant of Probate, the applicant must advertise their intention to apply 14 days prior to filing an Originating Motion. If instructed, we will attend to all such matters. The advertisement allows another party the opportunity to contest the application if, for example, there is evidence that there is a later will that may have been executed by the deceased or doubt exists as to, for example, the capacity of the deceased as at the time of making the will. After the 14 day period has elapsed, the executor may apply to the Prothonotary’s Office of the Supreme Court with the relevant documentation for a Grant of Probate.
Upon successfully obtaining a Grant of Probate, the executor is then legally entitled to deal with the contents of the Will and to carry out the wishes of the deceased.
ASAP Lawyers regularly accepts instructions from executors in relation to applying for a Grant of Probate. We can assist executors with the sale or transfer of property out of an estate and in realising the assets of the Estate by, for example, calling in the bank accounts, applying for payment of insurance policies/death benefits and assisting with the sale of shares. We regularly guide and advise executors on the administration of estates to ensure they are properly fulfilling their duties as executor and to protect them against being personally liable for issues that may arise in the administration of an estate. Typically, the legal fees involved in obtaining the Grant of Probate and administering the Estate are paid for by the estate and not the executor personally.
If you would like to speak to a legal professional about applying for a Grant of Probate, please contact us on 03 9450 9400.
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