Handling Probate?

Handling Probate Kit: $199

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.

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 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 you may consider “renouncing probate”. The Will maker may have discussed the appointment with you but frequently the executor is unaware of the appointment until death.

Do I need Probate?
Not necessarily. The main reason that probate is required is that some organisations which hold assets of the estate will not release them to the executor(s) for distribution without sight of a Grant of Probate. You will need to make a list of everything the deceased owned or was entitled to and then make contact with the financial institutions concerned to establish whether they require a Grant of Probate. This will be more relevant for smaller estates. For larger estates comprising real estate, probate will almost certainly be required.

Real Estate
The Land Titles Offices in all States and Territories will always require a Grant of Probate if the home or land to be distributed under the will is in the deceased’s name only or tenants in common. If the deceased person owns land as a joint tenant, probate will not be required as the property will automatically revert to the other person (for example, the spouse of the deceased). Transfer of the title from joint names, or solely in the name of the deceased, into the name(s) of the beneficiaries will be required.

Bank and Building Society Accounts
Financial institutions have varying rules which will allow access to the deceased’s accounts without a Grant of Probate if the estate is small. We recommend that you make an enquiry of the financial institution regarding any accounts containing any more than $10,000. The general cut-off is commonly $15,000 but this will vary from institution to institution. Draft letters are provided at the back of the kit.

Cars
The Roads and Traffic Authority, or your State equivalent, will not require a Grant of Probate but will need sight of a certified copy of the death certificate, a copy of the will, a letter from the executor, proof of identity, the certificate of registration and the completed application to transfer the registration of the deceased’s vehicle.

Shares
In our experience, if shares are held in an account in the sole name of the deceased and valued at over $2000, the Grant of Probate will generally be required to release the shares for distribution by the executor. The executor should contact either the share registry of the company concerned or could alternatively contact Computershare Investor Services on 1300 855 080 to ascertain the number and value of shares held and whether the Grant of Probate is required for distribution.

Insurance policies
You will need to contact the institution concerned and enquire whether they require the Grant of Probate to release the funds to the executor for distribution. Some types of policy will include provision for a named beneficiary in the event of the death of the policy holder and may therefore not be covered by the will.

Applicable laws
Each State has its own laws governing wills and the application for probate. For example in NSW, the applicable laws are the Wills, Probate and Administration Act 1898 and the Supreme Court Rules 1970 (NSW).

Where there is no will
Where a person has died and not left a will they are said to have died "intestate". In this circumstance, Letters of Administration may be sought from the Court by anyone with an interest in the affairs of the deceased, e.g., a close relative, to enable the distribution of the assets of the deceased. The assets of the deceased will be held on trust by the court appointed administrator to be distributed according to the rules of intestacy in the applicable State. All Australian jurisdictions now provide fixed lists which must be followed in determining the distributions of an intestate’s estate.

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.

DIY Handling Probate Kit

There are a number of solutions available to executors in applying for a Grant of Probate. The most common is through the use of a solicitor. Legal fees range from $2,000 to $5,000. In addition to the legal fees, the Supreme Court charges a filing fee which varies from state to state. For example in NSW, filing fees range from zero for estates under $50,000 to $1,424 for estates valued at over $1million. You may want to consider the use of a DIY Handling Probate Kit. These are a very cost effective alternative at $199.95 and include a step-by-step guide, completed examples of forms and blank forms to fill in.

Disclaimer:

No investment advice provided to you.
This web site is not designed for the purpose of providing personal financial or investment advice. Information provided does not take into account your particular investment objectives, financial situation or investment needs.

You should assess whether the information on this web site is appropriate to your particular investment objectives, financial situation and investment needs. You should do this before making an investment decision on the basis of the information on this web site. You can either make this assessment yourself or seek the assistance of any adviser.