After a person dies someone has to look after the assets of that person and pay the person’s debts. Although the person is no longer here, his or her affairs must be finalised and the person to finalise the affairs is appointed by the Will of the deceased.

Where a person is appointed by a Will, that person is called “an executor”.

An executor is chosen by the person making the Will to carry out their wishes in managing their estate and is responsible for the administration and distribution of assets to beneficiaries according to those wishes. An executor may be a friend, a relative, or a professional.

Most people are unaware of the complexities and time involved in administering an estate and may find the role to be a burden.

What are the legal steps that are taken after someone dies?

The executor of a Will may need to make an application to the Supreme Court for Probate. This is usually done with the help of a lawyer. Probate is a Court order declaring a deceased’s Will valid and that the person named in the Will as the executor can finalise the deceased’s affairs.

When do I need to apply for Probate?

There is no statutory requirement to obtain Probate and a Grant may not be necessary for small estates.

The requirement to apply for a Grant of Probate will depend upon the nature of the assets of the estate. Probate will generally be required to transfer land unless it is held with a surviving joint tenant.

To determine whether Probate is needed, the person appointed executor in the will must contact the organisations with which the deceased held assets to determine the requirements of those organisations for transfer of those assets to the executor or the beneficiaries. This is best done through your lawyer.

Where a dispute does or is likely to arise over the estate, a person appointed as executor would be wise to apply for a Grant of Probate. Where a person does not have the right to deal with an estate, the person can become personally liable to the beneficiaries.

 

How to apply for Probate

Anyone appointed an executor under a Will must firstly determine the deceased’s assets and debts.

In making an application to the Supreme Court, a notice of intention to apply for a Grant must be advertised at least fourteen days before the application is made. The notice is required to warn interested parties (creditors, family provision claimants) of the application and provides an opportunity for the relevant claim or objection to be lodged.

The following documents are filed with the Supreme Court:

  • Application for Probate;
  • Original Will and death certificate;
  • Affidavit in support of Application;
  • Affidavit of Publication and Service.

The affidavit sets out the relationship between the deceased and the executor, identifies the Will and death certificate and, if relevant, vouches for the deceased’s signature on the Will. The affidavit includes specific information to explain irregularities, such as different spellings of names or the death of a beneficiary.

Sometimes additional documents will need to be prepared to explain unusual circumstances and an estate lawyer can advise in this respect.

Paying any debts and distributing the assets

Any debts of the estate must be paid before the estate is distributed. Then the executor distributes the estate in accordance with the will.

After the Grant of Probate from the Supreme Court Registry has been made, evidence of the Grant must be sent to the various places where the deceased’s assets were held (ie. the deceased’s banks or share registries). Those institutions then transfer the assets as directed by the executor.

Any land in the sole name of the deceased can be transferred to the executor or the beneficiary by lodging the Grant of Probate with the Titles Registry Office, together with an application to transfer the land.

Where the deceased owned land in more than one jurisdiction, it may be necessary to apply to the Supreme Court of each jurisdiction for a reseal of the Grant of Probate, before the land can be transferred under the Will.

If you need to know any more about administering an estate, please call us on 1300 17 17 12 or email [email protected]