If you have been named as an Executor to someone's Will, you may have to get Probate to deal with that person's assets afer they pass away. This may involve selling property, dealing with bank accounts or paying liabilities from the estate.
Being an Executor is an important responsibility and it's important to ensure that you have a clear understanding of your legal duties and responsibilities.
Probate is the authority granted by the Court that allows an Executor of a Will to deal with a deceased's assets and liabilities. An application for probate is made by submitting the relevant documents to the Court.
In order to get Probate, you must be an Executor named in a valid Will of the deceased. You must be over 18 years of age and not bankrupt or insolvent.
An Executor can renounce (reject) the right to apply for Probate or reserve his or her right to apply in the future. This would only apply to any assets not yet administered by the other Executor.
The particular steps to apply for probate will depend on each state, as each Court has a specific procedure. A general overview is as follows:
STEP 1 - LOCATE ORIGINAL DOCUMENTS
You need to find the deceased's original Will and obtain the death certificate for the deceased.
STEP 2 - PUBLISH A NOTICE IN THE NEWSPAPER
In most states, you must publish an advertisement that gives notice the Executor is applying for probate.
STEP 3 - COMPLETE COURT DOCUMENTS
You then need to ensure that you have all the Court application documents specific to your state completed and typed. The documents cannot be handwritten. You must sign the documents in the presence of a certified witness.
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STEP 4 - SUBMIT YOUR APPLICATION
The final step is to submit the application to the relevant court, together with the supporting documents. There is a fee to lodge a probate application. The fee varies from state to state.
Even if you have a Will of the deceased, you should make a thorough search to ensure there is no other Will or document that could be a Will left by the deceased.
If you can only locate a copy of the Will, you may be able to apply for "Letters of Administration with the Will annexed". In general, the Court will give priority to a copy of the Will before applying the "laws of intestacy".
The laws of intestacy will apply where the deceased did not leave a Will or a valid Will or if no named Executors are able to apply for Probate. The intestacy laws set out, in order or priority, which next of kin will receive a benefit from the deceased's estate.
The process to obtain Probate is much simpler than Letters of Administration so it's always preferable to have the original Will of the deceased, kept in pristine condition.
This article contains information of a general nature only and is not specific to your circumstances. This is not legal advice and should not be relied upon without independent legal or financial advice.