What is Probate?
Probate is the legal process of proving and registering in the Supreme Court the last will of a deceased person. Effectively it certifies that the will is valid and confirms the appointment of the executor. Once validated, the executor names in the will can administer the estate and handle the disposal of assets and debts of the deceased.
Why must we apply for a grant of Probate?
Once a person dies, they can no longer hold assets. As such, their assets must be wound up and distributed. Before assets can be distributed, the Court requires proof that the will is valid and that the executor appointed under the will is not only alive, but also willing and able to administer the estate. The process of probate also confirms that there are no objections to the Will.
What happens if you die without a Will?
When a person dies without a will it’s called ‘dying intestate’. Unfortunately if this happens then the law determines who receives the assets of the deceased person. The deceased person’s wishes regarding their assets are not taken into account.
However, if this happens then the next of kin normally have an opportunity to apply for what is called ‘Letters of Administration. Next of kin could be the deceased person’s spouse, domestic partner, or one of their children.
What is Letters of Administration?
When a person dies ‘intestate’ then there is no executer appointed to administer the deceased’s estate. In such case, Letters of Administration is the court’s way to appoint a person to administer the estate of the deceased person.
Letters of Administration can also be required where the deceased has made a will but the executor of the will has predeceased the deceased. If this happens, the person whom is to receive the largest entitlement under the will is able to apply to administer the estate.
If you’re unsure about whether to apply for Probate or Letters of Administration, or if you generally just need some guidance, connect with our Estate Planning experts. If you would like to book a Quick Match or request a quote, please follow the links on the Legally Yours website.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.