When a person draws up a will, they need to appoint someone to administer their estate when they die. This person is known as the executor. The executor is responsible for carrying out the terms of the will. The executor will sometimes need to apply for probate. Probate means the official recognition that a will is legally valid. The application is made to the Probate Registry of the Supreme Court for a “Grant of Probate”. The grant is a document certifying that the Supreme Court recognises the authority of the executor(s) to deal with the estate. This will enable the executor to collect the assets and pay any debts of the deceased person and then to distribute the estate as directed by the will.
Do I need to obtain 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.
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. 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 $50,000 but this will vary from institution to institution. Draft letters are provided at the back of the kit.
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 for transfer to transfer the registration of the deceased’s vehicle.
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.
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.
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. For more information, please see our Letters of Administration PLUSservice.
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.
Do I need to use a solicitorto apply for Probate?
No. The executor(s) can make a personal application for a Grant of Probate. In doing so, you can save thousands of dollars in legal fees and maintain full control of the process.
AussieLegal offers a service that assists executors in making a personal application.Testimonials.