What is Probate? And do I need it?

Dealing with a loved one’s estate after their death is an overwhelming task often made more difficult by complicated requirements.

One question we hear all too often is, “what is probate, and do I need it?” and the simple answer is, “well, it depends”. Here are the questions we ask to determine if a Grant of Probate is required:

  1. Did the deceased have any assets such as real estate or large sums of money[1] in their sole name?
  2. Did the deceased leave a Will? and
  3. Is the Executor able and willing to act in that role?

Grant of Probate

If the answer to all of the above questions is ‘yes’, then the Executor will need to make an application to the Supreme Court for a Grant of Probate. However:

  • If the deceased person made a Will but all of the people named in the Will as Executors (i.e. all the instituted (first) and substitute (alternate) Executors) are unable or unwilling to act, then a Grant of Probate cannot be obtained; and
  • The next-of-kin of the deceased or one of the main beneficiaries or a creditor of their estate would need to make an application for a Grant of Letters of Administration (with the Will annexed).

Letters of Administration

If the answer to question 1 is ‘yes’, but the answer to question 2 is ‘no’ (the deceased did not leave a Will), then the deceased person’s next-of-kin or a creditor of their estate will need to make an application to the Supreme Court for a Grant of Letters of Administration. There are two types of Grants of Letters of Administration:

  • Grant of Letters of Administration (with the Will annexed); and
  • Grant of Letters of Administration (no Will)

but both have the same effect in that they both appoint an Administrator (as opposed to an Executor) to deal with a deceased person’s estate.

Grant of Probate and Letters of Administration – what are they and how do I get one?

A Grant of Probate  and a Grant of Letters of Administration are sometimes referred to as grants of representation. A grant of representation is a legal document issued by the Supreme Court that authorises the Executor or Administrator (depending on the type of grant) to deal with the assets and liabilities in the deceased person’s estate.

To obtain a grant of representation, the Executor or proposed Administrator must make an application to the Supreme Court. The application consists of a number of court documents, including:

  • an affidavit that sets out facts about the deceased person and their estate; and
  • an inventory that lists all the assets and liabilities of the deceased person, including any joint assets/liabilities.

In most jurisdictions, it is a requirement to publish a Notice of Intention to Apply that gives notice to the public and the estate’s creditors that an application is being made to the Supreme Court for a grant of representation. In all jurisdictions, there is a court filing fee that must be paid on filing the application, whichis usually determined by the gross value of the estate.

Once a grant of representation is obtained and where there is a Will, then the Executor or Administrator must deal with the deceased person’s estate in accordance with the terms of the Will. Where there is no Will, then the Administrator must deal with the estate in accordance with the relevant jurisdiction’s Rules of Intestacy.

What is a Reseal?

If the deceased lived (for example) in the ACT and had real estate in the ACT and NSW, then a grant of representation would be obtained in the State or Territory in which the deceased person was domiciled/lived – in this case the ACT. It would then be necessary for the person who obtained the grant of representation in the ACT to make another application to the NSW Supreme Court to reseal the ACT grant of representation with the seal of the NSW Supreme Court. If the Executor only obtained a grant of representation in the ACT, then they would not be authorised to deal with the real estate in NSW. However, if the deceased lived in the ACT but only had real estate in NSW, then the Executor or proposed Administrator would only need to apply for a grant of representation from the NSW Supreme Court.

Meyer Vandenberg can help

Our Estates Team is ready, willing and very able to help you and your family to navigate dealing with a deceased estate. We are on hand to give you advice about deceased estates, and provide you with assistance to obtain a grant of representation or Reseal from any Australian State or Territory. Once a grant is obtained, we can assist you with administering the estate and provide you advice about any issues you might encounter along the way.

 

Tanya Herbertson | Partner
(02) 6279 4417

Tanya.Herbertson@mvlawyers.com.au

[1] Most banks will release funds held in a deceased person’s bank account provided the total combined balance of all the accounts is less than the bank’s nominated threshold (normally $20,000 – $30,000 – but depends on the individual bank).