Probate & Estate Administration

Probate is a grant made by a Court that proves the Will of a deceased person, vests title to estate assets in the executor and authorises the executor to deal with the estate. The executor is responsible to pay estate liabilities, distribute gifts, sell and transfer property, arrange estate returns and generally finalise the estate in accordance with the Will.

The Application for a Grant of Probate is made to the Supreme Court and involves publication of a Notice of Intention to Apply; service on the Public Trustee; and various legal documents and affidavits being drafted and lodged with the Court. Most clients seek the services of a probate lawyer to undertake this process.

There is no legal requirement to obtain probate and applying for a grant may not be necessary for small estates or where property was held jointly with a sole beneficiary. In such cases, the deceased’s share of jointly held property can be transferred to the surviving owner by completing the required documents with the relevant authority or institution. It is important to seek legal advice however even for small estates, as complications may arise if a grant of probate is not obtained, including potential legal personal liability of the executor.

An application for Letters of Administration is made by an interested person when a person dies intestate or the executors named in a valid Will are no longer alive or are unable to fulfil the role.

A grant of Letters of Administration will appoint the applicant as administrator of the estate, allowing him or her to deal with the estate assets and liabilities in the same manner as an executor.

Dealing with a deceased estate can be distressing and often involves complex issues at a time of grief and loss. Executors and administrators may need to liaise with a range of stakeholders to ensure the terms of the Will are upheld.

EXECUTORS and Administration of Estates

Being an Executor and having to administer the estate of a deceased person can be a daunting experience and comes with a lot of responsibility.

An executor is the person nominated in a will to take care of a person’s estate after they pass away; represent the deceased and manage their personal, financial and legal affairs in accordance with their wishes. 

The following summarises the Executor’s responsibilities he/ she must attend to :

• Locate the original will;
• find and notify the beneficiaries;
• attend to funeral arrangements;
• obtain the death certificate;
• let relevant organisations know the person has died;
• apply to the Supreme Court for a Grant of Probate or letters of administration – (Probate ensures the Will is valid and that the executor has the Court’s permission to carry out the role and deal with the assets of the deceased)
• secure and maintain the assets until they can be distributed;
• locate important documents and gather together all the assets;
• arrange for payment of liabilities (most often from an estate bank account which will need to be established);
• defend any legal proceedings which may arise from a contest of the will;
• attend to taxation matters, and if necessary lodge a final tax return on behalf of the deceased and/or estate (most often involving an accountant); and
• distribute the assets to the beneficiaries in accordance with the terms of the will after the relevant time frames have passed.

It may seem like an honour, however it can be a very time consuming and onerous role.  It is advisable to seek the advice of an experienced solicitor as soon as possible to ensure that your duties are carried out properly.