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What is Probate?

How is an Estate administered?

The law in relation to the administration of an Estate deals with the manner in which the assets of a Deceased’s Estate are distributed.

Administration of the Estate involves the collection of the Deceased’s assets, payment of the Deceased’s and the Estate’s debts, and distribution of the remaining assets in accordance with the Will.

As a general guide, an Executor is allowed one year to complete administration of the Estate, known as the “Executor’s year”. This is not hard and fast rule, but will depend on the nature of the Estate and the terms of the Will, and what sort of time frame is considered reasonable in the circumstances.

When is a Grant of Probate required?

A Grant of Probate is a document issued by the Supreme Court which confirms that the Deceased’s Will is valid and that the Executor is entitled to administer, and the beneficiaries are entitled to benefit, from the Estate. 

A Grant of Probate is usually required when a Deceased held assets of significant value in his/her sole name.

For instance, if a Deceased held a bank account with a balance of more than $20,000.00, the bank will in most instances require a Grant of Probate so that they are in a position to release the balance of the Deceased’s account to the person authorised by the Court to represent their Estate.

A Grant of Probate is always required when a Deceased owned Property in his/her sole name.

There are, however, situations where it may not be necessary to obtain a Grant of Probate. This may be because the Estate is small, or the Deceased’s assets are held jointly with another person and accordingly, on death, transmit directly to the surviving joint asset holder.

I have been appointed Executor - what do I need to do?

The role of an Executor will depend on the deceased’s Estate.  Generally, an Executor will need to deal with asset holders before the assets are released to the Executor.  Asset holders usually require the Executor to: provide certified copies of the Death Certificate and Will; sign Indemnities and obtain a Grant of Probate.

A Grant of Probate is a document issued by the Supreme Court which confirms that the deceased’s Will is valid and that the Executor is entitled to administer, and the beneficiaries entitled to benefit, from the Estate.  An Executor should see a solicitor who can prepare the Application for Probate.

Once the assets have been collected, the Executor needs to pay from the Estate assets any debts of the deceased or their Estate before distributing the remaining assets in accordance with the Will.

I have been appointed Executor - what are my rights?

An Executor stands in the shoes of a deceased and administers the Estate.  This includes organising the funeral and disposal of the deceased’s body.

The Executor holds the deceased’s assets on Trust until such time that they can be distributed to the beneficiaries.  This is usually after Probate or until six months have elapsed from the date of death.

Executors also have a duty to preserve the assets of an Estate, including investing funds for minor or disabled beneficiaries or collecting rent from a deceased’s property.

For more information on Probate contact Krystle Wolthers on 02 4626 5077 or email Krystle on kwolthers@marsdens.net.au

 

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