Probate Lawyers
What happens if your loved one passes without a will or without appointing an executor in the will? Or if you’re the executor of the will but don’t know what to do next? At MV Law, our experienced probate lawyers can help you and your family navigate the complicated process of dealing with a deceased estate.
If your loved one has a will and had assets such as real estate or large sums of money when they passed away, you will need a grant of probate. This is a legal document which authorises the executor of the will to manage the estate and make distributions according to the will. This grant of probate can be presented to institutions such as banks and retirement villages, in order for them to transfer the assets to the executor for distribution.
If the deceased person made a will but the people named as executors in the will have died or are unable or unwilling to act, then you may need to make an application for a grant of Letters of Administration with the will annexed.
If the deceased person did not leave a will, or did not leave a valid will, then you may need to make an application for a grant of Letters of Administration with no will.
Some estates will require the grant to be ‘resealed’ in another jurisdiction. For example, if the deceased owned property in the ACT and also in NSW then a grant would need to be obtained in one jurisdiction and then resealed in the other jurisdiction.
We have the expertise and understanding to assist you in all these matters, to get the process sorted as simply and as efficiently as possible. We can help you obtain a grant and, once a grant is obtained, we can assist you with administering the estate and provide you with advice about any issues you may encounter along the way.
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The MV Law difference
Our expert probate lawyers provide comprehensive deceased estate services, from obtaining Grants of Probate, Letters of Administration or reseals of grants from any Australian State or Territory, as well as providing guidance and support throughout the whole process.
Obtaining probate can sometimes be a daunting or lengthy process, depending on factors such as the complexity of assets and any need to obtain valuations. Somewhat confusingly, every institution has different requirements or thresholds as to when they’ll require a Grant of Probate and when they won’t.
By using our experienced probate lawyers, it can expedite the process and save you a lot of hassle. Our team knows this area of law inside and out, and we’re committed to making the process easy for you.
You don’t need to try and navigate the probate process alone. Instead of having to do all the research yourself to try and understand what steps you have to take and the formalities that need to be completed, you’ll have peace of mind that you are getting it done right with the help of our specialist probate lawyers.
You’ll also be able to give assurance to beneficiaries that everything is above board and properly documented. And remember, an executor or administrator’s legal fees can be paid out of the estate.
FAQ's about Probate
Probate is the Court’s confirmation that a deceased person’s Will is valid. When the Court confirms the validity of a deceased person’s Will, they will issue what is called a Grant of Probate. Probate is granted to the executor or substitute executor appointed in the Will. If there is no executor or substitute executor appointed in the Will, or the appointed executor is predeceased, unable or unwilling to act as executor, then a next-of-kin will need to apply to be appointed administrator of the deceased person’s estate. Where there is a Will and an administrator is appointed to administer the deceased person’s estate, the Court will issue a Grant of Letters of Administration with the Will annexed – this is different to a Grant of Letters of Administration. A Grant of Letters of Administration is granted where there is no Will.
To obtain Probate, the executor appointed in the Will needs to apply to the Court to confirm the validity of the Will. To do this, the executor needs to file a number of Court documents providing evidence about the deceased person and their estate. One of the main documents, an Affidavit, needs to disclose details about the deceased person, details about the deceased person’s Will and details about the deceased person’s assets and liabilities. Most applications for Probate are uncontested – a hearing is not required, and the applicant is not required to attend Court. The registrar will review the executor’s application for probate and, in most cases, issue the Grant of Probate. If the registrar requires further information to satisfy the Court that Probate should be granted, then they will issue a requisition to which the executor must respond. The response generally needs to be provided by way of a further Affidavit.
It is important to do everything possible to locate a Will. But if the deceased did not make a Will, or it cannot be found, then a suitable Administrator might have to make an application to the Court for a Grant of Letters of Administration.
When a person dies without a Will, they die intestate. When a person dies with a Will, they die testate. When a person dies intestate, the law dictates what happens to their estate – this is known as the rules of intestacy. The rules of intestacy say who is entitled to your estate, and what share of your estate the person or persons entitled to benefit are to receive. Where a deceased person dies without a Will, someone, usually your next-of-kin will need to apply to the Court to be appointed as Administrator of your estate. The role of executor and administrator and tasks that they perform are the same – the difference is that an executor is appointed by a Will, an administrator is appointed by the Court.
Where there is no Will, or where there is a Will but there is a problem with it (eg. the named sole Executor has died), then an application for a Grant of Letters of Administration might be necessary. The applicant (who applies to be appointed as Administrator) might be the spouse or adult child of the deceased, or another family member or close friend. Similar to an application for Probate, the proposed Administrator identifies and values the assets and liabilities, prepares a set of Court documents and places an online Notice of Intention to Apply for a Grant of Letters of Administration. They would have to tell the Court all of the steps that they have taken to try to find a Will for the deceased. If the Court is satisfied that there is no Will in existence and that the applicant is a suitable Administrator, then it would make a Grant.
Letters of Administration is the type of grant of representation that is issued when a person applies to be appointed administrator of an intestate estate. To apply for a Grant of Letters of Administration, the applicant needs to file a number of Court documents providing evidence about the deceased person and their estate. One of the main documents, an Affidavit, needs to disclose details about the deceased person, and details about the deceased person’s assets and liabilities. In addition, the applicant will need to disclose to the Court the person or persons entitled to the deceased’s estate on intestacy and prove those persons by way of submitting evidence to the Court, such as Birth Certificates, Marriage Certificates etc. The applicant for Letters of Administration must also obtain consent from the person’s entitled to the estate to be appointed administrator of the deceased person’s estate. In most cases, consent will be given but it can be withheld in some instances – in those cases, the proposed administrator can still apply to be appointed administrator of the deceased person’s estate, but they must take additional steps to show the Court that they have given notice to the person’s entitled of their intention to apply for Letters of Administration, and must show the Court proof that they have served notice of the intention on the persons entitled to the estate and tried to obtain their consents. Most applications for Letters of Administration are uncontested – a hearing is not required, and the applicant is not required to attend Court. The registrar will review the applicant’s application for Letters of Administration and, in most cases, issue the Grant of Letters of Administration. If the registrar requires further information to satisfy the Court that Letters of Administration should be granted, then they will issue a requisition to which the applicant must respond. The response generally needs to be provided by way of a further Affidavit.
The Grant allows the Executor or Administrator to administer and finalise the ‘estate’ – the assets and liabilities of the deceased – and distribute the estate to beneficiaries. They present the Grant to organisations which hold assets on behalf of the deceased, along with the necessary paperwork, in order to ‘realise’ those assets. For example, they might ask a bank to transfer the proceeds of bank accounts to the estate. They might complete a Transmission Application to have land owned by the deceased transferred into their name in order to sell it. They might sell shares or transfer them to beneficiaries. They might request that a Refundable Accommodation Deposit be refunded by a nursing home. These assets can either be transferred directly to beneficiaries or their cash value can be transferred into an estate bank account, for eventual distribution to beneficiaries.
The Executor or Administrator must also use estate assets to pay any outstanding debts owed by the deceased.
The beneficiaries are the people named in the Will or, where there is no Will, then the law of intestacy rules will apply to identify who is to be a beneficiary of the estate. These rules are different in each state, but it is usual for intestacy beneficiaries to be the spouse of the deceased and their children, or more distant relatives if the deceased had no spouse and/or children.
After Probate is granted and the deceased person’s Will is confirmed valid, the executor to whom probate is granted has the authority to administer the deceased person’s estate. It is the executor’s responsibility to realise assets such as selling shares, closing bank accounts, transferring/selling real property, transferring/selling motor vehicles, redeeming insurance policies such as life insurances, dealing with superannuation funds where the deceased person nominated their estate to receive their superannuation, etc. Once estate assets are realised, it is the executor’s responsibility to ensure that all estate liabilities are settled. The executor must also confirm that the deceased’s taxation matters are finalised, and if necessary, arrange for any outstanding individual and/or estate tax returns to be lodged. Once the estate is ready to be finalised (and provided no claims have been made against the estate) then the executor can distribute the estate to the beneficiaries in accordance with the terms of the deceased person’s Will. If a claim for provision has been made against the estate, then the claim must be settled before the estate can be distributed. If the executor distributes the estate before claims are settled and there are no estate funds left to settle provision claims, then the executor can be held personally liable for those claims.
The common issues that arise when applying for a Grant of Probate include but are not limited to:
- The original Will is lost, misplaced or destroyed – an application for probate of the copy of the Will needs to be made, and in most cases, provided there is sufficient evidence supporting the application, such application will be granted.
- The institute executor and/or substitute executor is unable or unwilling to apply for probate, and the Will fails insofar as it fails to appoint an executor – in this case, a person needs to apply for a Grant of Letters of Administration with the Will annexed. The person appointed administrator of the deceased person’s estate will then distribute the estate in accordance with the terms of the Will.
- A Will is poorly drafted and fails to properly dispose of estate, in which case a partial intestacy applies insofar as the rules of intestacy apply in regard to the distribution of the estate – the executor appointed in the Will can still apply for a Grant of Probate and then distribute the estate in accordance with the rules of intestacy. They will need to address the discrepancies in their Affidavit in support of the application for a Grant of Probate.
- The Will is not witnessed in accordance with the law – the executor will need to make an informal application to the Court for the Court to the declare the Will valid notwithstanding that the Will has not been executed in accordance with the law.
- Questions are raised in relation to the testator’s capacity when he or she made the Will – beneficiaries or potential beneficiaries may prevent the Court granting probate if they believe that the deceased person did not have the requisite testamentary capacity when they made the Will. A Caveat will be filed against probate being granted setting out the grounds as to why probate shouldn’t be granted – the probate proceedings then become contested and a hearing will need to be held to determine the validity of the Will and whether it should or shouldn’t be admitted to probate.
A person can challenge a Will before it is admitted to probate by filing a court document called a Caveat. The Caveat needs to set out the applicant’s grounds as to why probate should not be granted – this is usually the time when applicants will challenge the validity of the Will and the majority capacity cases are heard by the Court. The Court must be satisfied before granting Probate that the Will is the deceased person’s last Will, the deceased person had the requisite testamentary capacity to make the Will at the time the Will was made, and the deceased person was not under undue influence when they made the Will. A beneficiary or eligible person who wants to challenge the provision made for them (or lack thereof) does not have a right to challenge probate – they can only challenge probate being granted if they believe there are grounds to challenge the validity of the Will. If a beneficiary or eligible person wants to challenge the provision (or lack thereof) made for them in the Will, then they would need to file a family provision claim against the estate – these claims are usually mediated and settled once probate has been granted to the executor.
If you want to be empowered over the legacy you leave, talk to the MV Law Wills and Estates team now.
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