Probate is essential for an executor administering your estate, so what is it and why does your executor need to have it?
Understanding the probate process gives you an appreciation of the legal safeguards involved in ensuring your final wishes are carried out as your will instructs.
What is Probate?
When someone passes away, their will is read and their estate is distributed to their beneficiaries. Isn’t that basically the process? Well, it turns out the process can be a little more involved. In certain situations, the executor – the person you name to carry out your will – has to apply for probate before he or she can get started.
Probate is a court order confirming your will is valid. It gives permission to the executor to proceed with distributing your estate as instructed by the will. A grant of probate also indicates the court is satisfied the testator has died and the will is the final version made by the testator.
It involves the executor registering and “proving” the will before the court grants authority to him or her to administer the estate. So even if you have a valid will, typically your assets can’t be distributed instantly unless a court grants probate first.
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Do You Always Need Probate?
So do you always need to get probate? The executor has to have probate first if the deceased owned significant property in their sole name. However, some rare exceptions do exist. For example, depending on your state or territory laws, your executor might not need probate if your estate is small and has no real estate.
The asset holders (such as banks, insurance companies, and super funds) might agree to release the funds to your estate without needing a grant of probate. Additionally, your executor might not need to obtain probate if all assets had been held jointly, as opposed to held as “tenants in common.”
This is because when held jointly, the property passes automatically to the surviving owners when someone dies. If the deceased died without a will, letters of administration are required instead of probate. In this case, a beneficiary makes the application for letters of administration.
Who Applies for Probate?
Usually, the executor applies for probate. If your will nominates multiple executors, more than one executor can apply. Lawyers appointed by executors are also eligible to apply on the executor’s behalf. Typically the executor will have a lawyer to assist with the application process as it can be quite complicated.
The Probate Process
The process for probate varies depending on state or territory. Generally, the process will be similar to the following steps, which apply in New South Wales.
1. Publish Notice
Your executor publishes a probate notice, a Notice of Intended Application for Probate on the NSW Online Registry website. This notice gives the court advance warning of the application. It also lets family, creditors, and other parties know so they have an opportunity to make a claim if they intend to.
After at least 14 days after the notice, your executor can apply for a Grant of Probate in the applicable court. In New South Wales, this application needs to be made within six months of the death of the deceased (in the New South Wales Supreme Court) unless the executor has a reasonable explanation for the delay.
Your executor will need to complete the Summons for Probate, Grant of Probate, Inventory of Property, and Affidavit of Executor forms. Note the application for probate has to be accompanied by supporting documents, which include the original will and any codicil along with the death certificate.
Your executor can submit the application by filling it with the court as opposed to attending a hearing or formal process in court.
The court might raise a requisition if the application is incorrect or incomplete. This is a request for additional information. The executor needs to respond to this or the court will not grant probate.
Your executor could ask for more time to respond to the requisition, but if you don’t respond to the requisitions at all, you won’t get probate and your application could be dismissed. You can either refile an application form or file a separate affidavit to answer the requisition.
If all goes well, the court approves your executor’s application, and the grant is posted to you. The executor receives a Grant of Probate to confirm the validity of the will and the executor’s role with authorization to manage the estate.
In most cases, your executor will need to have probate to proceed with carrying out your will. Probate gives your executor the authority to proceed with managing your estate as you instruct.
Lastly, it’s the critical first step before the testator’s final wishes can be carried out. Probate can be likened to a safeguard since it’s designed to check the right person has the authority to administer the estate and that the instructions in the will are the correct ones.
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