When a person has been appointed as an executor under a will they will
sometimes need to obtain “probate” of the will by making application to the
Supreme Court.
A “Grant of Probate” simply means the formal approval by the Supreme Court to
the last will be lodged by the executor with the Court. The formal approval
allows an executor to collect the assets and pay the debts of a deceased person
and then to distribute the estate as that person directs in his or her will.
If you have been appointed as an executor, the AussieLegal Handling Probate
Kit will assist you to obtain a grant of probate and so enable you to collect
the assets of a deceased person and then to distribute them according to the
will.
The Kit will allow an application for probate in uncomplicated estates to be
prepared personally by the appointed executor. It contains the draft documents
and detailed notes on what you should do to make the application and draft
letters to assist you with the banks and companies with which the deceased
person had assets.
Do I need Probate?
Not necessarily. You will always need probate if the home or other land being
distributed under the will is in the deceased's name only. If you own this land
or property as joint tenant with the deceased person you will not need probate.
If there is no land in the deceased's name only, probate may not be essential
and is often not required.
Also you might need probate to deal with other assets, like money in bank
accounts or money from a life insurance policy. To find out you will have to
write to the bank, company or other institution who will tell you whether they
require probate before they will transfer the property into your name.
What are Letters of Administration?
In a similar fashion to an application for a Grant of Probate, in certain
circumstances, it is not possible to obtain probate. An alternative is to apply
for Letters of Administration. This is typically done under circumstances where
there is no will or the will is invalid or partially invalid.
PLEASE NOTE: THE 'HANDLING PROBATE' KIT IS NOT DESIGNED FOR USE IN THESE
CIRCUMSTANCES. WE STRONGLY RECOMMEND YOU SEEK LEGAL ASSISTANCE IF THESE
CIRCUMSTANCES APPLY TO YOU.
What is an executor?
An executor is a person appointed by another in a Will to act in respect of
the estate of the Will maker (Testator) upon his or her death.
An executor is the legal personal representative of a deceased person. When a
person dies without a Will then an Administrator is the legal personal
representative. The information in the Kit relates only to executors.
The appointment of an executor is only effective following the death of the
Will maker. Once he or she has died then if you are appointed by the Will as
executor you should decide very quickly whether or not you wish to accept the
position. You are under no legal obligation to do so. If you don’t want to act
as an executor the Kit contains information about how to “renounce probate”. The
Will maker may have discussed the appointment with you but frequently the
executor is unaware of the appointment until death.
If you have been appointed executor by the Will of a friend or relative who
has recently died you need to decide very quickly if you should accept the
appointment.
Disclaimer
This document is for information
purposes only, and must not be relied upon as a substitute for professional
financial advice or legal advice.
