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.
What is Probate?
Probate is the authority granted by the Court that allows an Executor of a Will to deal with a deceased's assets and liabilities upon that person’s death.
An application for probate is made by submitting the relevant documents to the Supreme Court, where the deceased left assets and liabilities.
Can I apply for Probate?
In order to get Probate, you must be an Executor named in the last and valid Will left by the deceased. You must be over 18 years of age and not be a bankrupt or insolvent.
Whether a Will is valid depends on the wording of the Will, the deceased’s relationship status, the status of named Executors and Beneficiaries and whether the document has been signed and witnessed correctly.
How do I get Probate?
To get probate, an application must be submitted to the appropriate Court, together with the original Will, kept in pristine condition. The particular steps to apply for probate will depend on each state or territory. Each Court has specific rules and procedures.
If you want the specific steps to apply for probate in the appropriate state or territory you can download a DIY Probate Kit .
I can’t find the Will
Even if you have a document that you believe is the last Will of the deceased, you should make a thorough search to ensure that there is no other document that could be a Will left by the deceased.
You must have the original and valid Will, in pristine condition. If the Will is marked or damaged, it may give rise to questions about the validity of the Will.
If you can only locate a copy of the Will, then 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". However, these types of applications can be complex.
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.