Obtaining Probate

Date: Feb 03, 2011
Document Type: Newsletter

When a person dies leaving a valid will, their estate is distributed according to the terms of their will.  Each state has unique legislation setting out the rules for administering the deceased’s estate.

A probate order states that the will has been proven to be the last valid will of the deceased.  It allows the executor to collect and distribute the estate in accordance with the terms of the will.

In most cases, the executor of the will must obtain an order for probate from the Supreme Court.  However, probate is not required in every case.  The need for a grant of probate depends in part on the form in which the deceased’s assets are held as well as the value of the estate.  Some asset holders will require the executor to produce a grant of probate before releasing assets above a certain value.  This is because the probate order protects these institutions against the possibility of releasing funds to the wrong person.  Probate is generally necessary if the estate includes shares, large sums of money or real estate held solely in the name of the deceased person or jointly with another person.

If the will did not appoint someone as executor, or if the named executor dies before the testator, the court will appoint an administrator to carry out the terms of the will.  This task usually falls to the major beneficiary under the will.  If the person appointed under the will does not want to be the executor, they can give up their right to obtain probate by filing a renunciation.  The executor can appoint the state trustee or a private trustee company to act in their place or, alternatively, one of the beneficiaries can apply to the court to become the administrator.

A solicitor can assist with the process of applying for a grant of probate.  There are a number of procedures which must be followed.  Procedures differ between states.  Generally, the first step involves providing notice of an intended application for probate.  The purpose of providing notice is to give anyone with an interest in the deceased’s assets, like creditors, an opportunity to submit their claims.

For example, in Victoria, a notice must be published on the Supreme Court of Victoria website at least 14 days before the date of filing an application for probate.  In New South Wales, an advertisement must be placed in a newspaper announcing the application for probate at least 14 days in advance of the application.  If the deceased lived in NSW, the advertisement must be placed in a newspaper circulating in the area where the deceased lived.  If the deceased lived in another state or country, the advertisement must be placed in a Sydney daily newspaper.

After the notice period has lapsed, the probate application may be filed with the Supreme Court.  In general, this application includes a sworn statement by the executor that he or she will administer the estate according to the law and that they know of no reason why probate should not be granted.  A number of documents must be included with the application including the will, the death certificate, the advertisement and an inventory of the deceased’s assets and liabilities.

If there is no dispute about the will or after any disputes have been resolved, the  court will grant a probate order.  After a grant is made, the will becomes a document of public record and any person may obtain a copy.

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