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 Supreme 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 Supreme Court of the state or territory where the deceased last lived.
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.
There are a number of other matters that an Executor will be responsible for if they have been named in a person's Will and that person passes away (other than applying for Probate). For example:
MAKE FUNERAL ARRANGEMENTS
The Executor may need to organise the funeral for the deceased. If there are clear instructions in the Will about final arrangements, this is an easy task. However, difficulties may arise if family members disagree about final arrangements. The Executor has the final say and the power to override the family's wishes.
An Executor needs to collect, protect and maintain the deceased's assets before the benefit is distributed to beneficiaries and after the payment of all debts. Make a list of everything the deceased owned and entitlements the deceased may have been entitled to at the time of death, such as an employment benefit, superannuation fund or life insurance. This is known as a Statement of Assets and Liabilities or Inventory of Property. Include an estimate of what the current market value is for each item.
The Executor(s) nominated in the Will need to obtain the authority of the Supreme Court in order to administer the assets in the deceased Estate, referred to as a Grant of Probate. It gives an Executor the power to deal with and discuss arrangements with financial and other institutions about releasing assets, paying debts and arranging for the distribution of assets. Use our sophisticated document generator to complete your probate application quickly and easily.
REPAY ALL OUTSTANDING DEBTS
List all debts and liabilities of the deceased. The total of the assets less liabilities will be the net value of the deceased estate. The sale of assets (step above) need to be deposited into a bank account in the deceased's estate name, then debts and expenses such as funeral expenses, tax, loans or mortgages are paid from this account.
The deceased probably earned an income and paid tax prior to his or her death. If so, the Executor will need to lodge any outstanding tax returns and pay the required tax to the ATO. If an asset such as property needs to be sold, Capital Gains Tax (CGT) may need to be paid on that property from the estate.
If the Will established a testamentary trust, such as holding benefits in trust for minors until they reach a certain age, the Executor is appointed as the trustee of the trust (unless the Will specifies another trustee). The trustee has a duty to administer and distribute the assets prudently and diligently. The Executor is then responsible for administering the trust as well as the estate.
DISTRIBUTE THE ASSETS
The last thing the Executor needs to do is distribute the assets remaining from the estate to the beneficiaries, the person or persons named as receiving a gift in the deceased's Will.
KEEP ACCURATE RECORDS
An Executor must keep 'proper' records and accounts of the administration of the estate and make sure everything is properly accounted for by receipts and other relevant documentation.
The Executor of a Will has a duty to administer the estate in accordance with the Will within a certain time or the beneficiaries may have the right to sue the Executor for undue delay.
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. Be careful when photocopying the Will. Do not removes staples, pin or attach anything to the original Will. You may want to keep it in a plastic sleeve or other protective mechanism. If you cannot locate the deceased's original Will or you can only find a copy, you cannot apply for probate.
STEP 2 - PUBLISH A NOTICE IN THE NEWSPAPER
In most states, you must publish an advertisement in a newspaper which states that the Executor is applying for probate. You must wait 14 days after you have placed the advertisement before 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. In most cases, if you intend to file the papers in person, you can swear the documents when you attend the Supreme Court.
If your Probate application is relatively simple, you can use our online Probate application to generate all the documents that you need to apply for a grant of Probate, in just minutes. Get started now.
STEP 4 - SUBMIT YOUR APPLICATION
The final step is to submit the application to the Supreme Court, together with the supporting documents. There is a fee to lodge a probate application. If you are filing by post, remember to include a stamped, self-addressed envelope for the Court to return the grant to you.
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.