Probate
You are welcome to call us on 1300 799 888 for a short free telephone consult. It will save you time money & convenience.
An executor of a will has to apply for grant of probate or representation in the equity division of the Supreme Court. Probate is an order from the court stating that the deceased's will has been proved valid with authority to administer the deceased's estate being granted to them. The Supreme Court in its probate jurisdiction has the power to make orders in relation to the validity of the will, the appointment of an executor and the administration of a deceased estate. The Probate Office keeps a register of grants of probate and where subject to caveats matters set down for trial. Where an executor is faced with a contentious matter it is essential to obtain legal advice as soon as possible.
Where an executor is applying for a grant of probate there are a number of formal procedures which need to be followed. Normally the larger the estate the more complex the executor's task is and the more they require access to competent legal advice. This process starts with advertising the intention to apply for a grant of probate through to filing documents in court. Probate is not required for very small estates or where property is held jointly. A small estate is one which is valued at less than $50,000 for present purposes and there is no filing fee. Where there is no matter in dispute then a grant of probate in common form is issued. Where there are disputes then a court case follows after which the court will make a grant in solemn form. Although there is a commonly held view that with small estates a grant of probate is not required it is far more common, when dealing with banks and building societies, that they prefer to have one and if not then a significant amount of time will be wasted dealing with their internal procedures to ensure they are fully protected against liability when dealing with estate matters.
If there is a will but no executor then you need to seek expert legal advice. If there is no will and no executor the same applies. Where there is no will the deceased dies intestate and application has to be made with the Probate Registry of the NSW Supreme Court for grant of letters of administration which will authorise the administrator to proceed to administer the deceased's estate according to statute. As in all these processes when a person applies for letters of administration certain documents are required before the matter can proceed.
Where there is intestacy, assets are distributed to any one of nine different classes of beneficiaries according to prescribed statutory order. Where there is a person/s qualifying in a particular class the whole estate passes to that class and no one else. Although administration bonds have been largely dispensed with they are still required in some cases and a lawyer should be consulted. Where the applicant is a defacto spouse there are specific requirements which relate to this situation then a lawyer should be consulted.
Where an executor or administrator has been appointed the administration of the estate is not allowed to run on forever. In the ordinary course it should not take more than one year and a grant normally takes between two to four months and if longer than six as indicated previously then this requires explanation. Of course matters can be made more complicated where a will is contested or disputed - the former because of its validity and the latter because of a lack of adequate provision. In these cases one can expect that the distribution of an estate can be substantially delayed depending upon whether or not mediation is successful. Suffice to say once the mater has been disposed of a grant of probate in solemn is issued by the court. There are very few cases where a lay executor or administrator possesses the necessary knowledge and experience allowing them to successfully deal with the administration of an estate so don't take the risk, call LAC Lawyers without delay!
Probate Articles
Succession Act Claims - Can a step child make a claim on an estate?
Date: November 10, 2010
Author(s): Jana Whitby B.A., LL.B. (Hons.)
Are you a member of a modern family which like many others consists of step-children? If so, do you wonder what your responsibility is as a step-parent to make provision from your Estate to your step-children?
Wills, Probate and Estate Disputes - An Overview of Estate Law
Date: October 08, 2010
Author(s): LAC Lawyers
Find out about estates, executors, wills, probate, inheritance, beneficiaries, and more...
Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 3: Types of Testamentary Trusts
Date: January 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The main reason for creating a beneficiary controlled testamentary trust is for protection of the principal beneficiary, particularly in a situation of relationship breakdown of marriage or de facto partnership. With the beneficiary controlled testamentary trust, there is considerable protection of assets from the primary beneficiary’s hostile family members.
Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 1: The Will
Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
A will is a legal document in which the will maker sets out how and to whom his or her personally owned assets are to be distributed after death, the manner in which his or her estate is to be administered and the powers the executors are given.
Estate Planning - Trusts Created By A Will Funded By The Will Maker - Part 2: What is a Testamentary Trust?
Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Simply, a testamentary trust is a trust established by a will. Testamentary trusts can be mandatory or optional, fixed or non-fixed, flexible or protective, short or long-term, or charitable or non-charitable.
Estate Planning - More than just a matter of making a will - Part 1
Date: May 06, 2008
Author(s): LAC Lawyers
Many people believe that by making a will, they’ve sufficiently planned for their death. This is a good start. A lot of people don’t do even that. Some estimates suggest that as many as half the people in Australia that die each year do not leave a formal will.
Estate Planning - More than just a matter of making a will - Part 2
Date: May 06, 2008
Author(s): LAC Lawyers
As stated previously in Estate Planning - More than just a matter of making a will Part 1, preparing a will is an important part of estate planning. A thorough and well drafted will determines to a large extent how your affairs are to be dealt with when you’re gone.
What to expect when you call LAC Lawyers
Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.
Essential Will Information
Date: November 08, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
Many people today make their own wills and this approach is fraught with danger. A will is a written declaration that sets out how a person wants their assets to be distributed to their beneficiaries following death.