The legal process to prove the validity of a Will is known as Probate. Probate is actually an Order passed by the Supreme Court confirming that a Will is the last valid Will of the deceased and it allows an executor, named in the Will, to collect and distribute the estate in accordance with the terms of the Will.
If you need to obtain a grant of probate or want to learn more about what is involved in the Wills and probate process (i.e. executor duties and administering the estate), read on. You can also talk to an experienced Owen Hodge probate lawyer.
The legal process of proving a Will: Wills and probate
Executors may be asked to prove that they are authorised to administer the Will before the assets can be released and this can be proved with the Grant of Probate.
How to obtain a grant of probate
To obtain a probate, the executor named in the Will must apply to the Probate Office of the Supreme Court. If the application is approved, it establishes the authenticity of the Will and the capacity of the executor to administer the estate.
When to apply for probate
To obtain a Grant of Probate from the Court, the executor should make an application within 6 months of the deceased’s death. If the application is made more than 6 months after the deceased’s death, the executor must give a reason to the Court.
The deceased’s assets are completely frozen until Probate has been granted. However, the executor has access to the deceased’s bank account to cover the funeral costs and expenses, and any Court fees related to acquiring the Grant of Probate.
Executors of a Will
Executors are usually nominated in the Will of the deceased. Where there is no valid Will or the person nominated to be the executor is unable or unwilling to discharge the duties, the Supreme Court can appoint an administrator to deal with the estate.
An executor of a Will is thus a person, who stands in the shoes of the deceased and administers the estate. The duties of an executor are manifold and some of those are discussed below.
Executors are required to arrange a funeral, burial or cremation for the deceased as soon as possible after the death. The funeral arrangements are typically carried out as per any instructions left by the deceased in the Will.
Care should be taken to ensure that the deceased’s wishes are carried out, and the Will should be checked for any specific directions. At the same time, the executor is not required to seek agreement from the deceased’s family before finalising any funeral arrangements. This is particularly important when religious beliefs need to be respected.
All costs or expenses incurred from the funeral are paid from the estate, before the beneficiaries receive their share of the estate.
Administration of an estate
Executors have authority to deal with assets and liabilities of the estate after the probate has been granted by the Court. They need copies of the following in order to officially register and transfer, or sell the assets of the deceased:
- Death Certificate
- Any other forms of identification and documentation requested by the asset holders
Assets which are jointly held with another party or person do not form part of the estate and cannot be called in as part of the estate. The executor needs to identify these jointly held properties of the deceased and disclose it to the Court during the application for Probate.
Superannuation also does not form part of the estate. A superannuation fund is a type of Trust and is governed by rules in a Trust deed.
In the case of a self-managed superannuation fund, it may permit members of the fund to make death benefit nominations which are binding on the Trustee of the fund and which could include a nomination that fund benefits be paid to a deceased member’s estate executor.
Payment of debts
Executors are required to pay off all the deceased’s outstanding debts after the estate’s assets have been called in and all claims have been prosecuted.
Executors are aware of all the deceased’s outstanding debts as part of the process they go through when applying for a Grant of Probate.
The order and manner in which these debts will be paid off are determined by whether the estate is solvent (which means there are enough assets to cover all the debts) or insolvent (which means that there are insufficient assets to pay all the debts).
Irrespective of whether the estate is solvent or insolvent, there are certain expenses which need to be paid before any debts. These include funeral expenses, testamentary process (probate) expenses and administration (including legal fees) expenses.
Distribution of an estate
Executors are required to distribute the estate among the beneficiaries, keeping in mind the testamentary intention of the deceased person.
Speak to a Wills and probate lawyer
Matters relating to deceased estates can be complex and often involve a substantial amount of paperwork. At Owen Hodge Lawyers, we have an experienced team who can help you through the legal proceedings and guide you in every step of the process. We look forward to helping you to gain access to your rightful claim.
If you are appointed as an executor of a deceased estate, feel free to contact our team of experts at Owen Hodge Lawyers on 1800 770 780 to provide assistance on the administration of the estate. We can also assist you in obtaining a grant of probate (NSW).
Further information about Wills and probate:
Wills & Estate team
Frequently asked questions
For a Will to be valid, it should be:
- In writing (typed, printed or handwritten)
- Written by a person who is over 18 years of age and has the capacity to make a Will
- Clearly outlines the Will-maker’s wishes
- Signed in the presence of of two adult witnesses who have signed the Will and aren’t beneficiaries
The Supreme Court during the probate of a Will.
You can apply for a grant of probate on your own, but it is recommended that you speak to a Wills and estate lawyer.