What is probate?
Probate is a critical legal step needed before a person’s estate can be administered or distributed to the beneficiaries. It is a document issued by the court certifying the will is valid. It also confirms the appointment of an executor.
It is officially called a Grant of Representation.
There are two main types. Probate and Letters of Administration.
Why is probate needed?
A deceased person cannot continue to hold bank accounts, shares, real property, cash, superannuation or furniture. They can’t be employed or receive pension payments.
Probate starts the process of winding up all their affairs.
Probate makes the will legal
The court requires proof that the executor appointed in the will is alive, willing and competent to undertake the tasks involved. It determines the document is the last will made by the deceased. It also verifies that there are no objections to the will.
Why is probate important?
Without probate an executor does not have the authority to administer the estate. Without probate, an executor would not be able to transfer certain assets to beneficiaries.
What if there is no will?
When a person dies without a will, there is no executor appointed to administer the estate. In these cases, the next of kin usually have to apply for a document called ‘Letters of Administration’
What is Letters of Administration?
Letters of Administration is the court’s approval for someone to administer the estate of a person who dies without a will. In most instances this is granted to the next of kin of the deceased. This could be their spouse, their domestic partner or one of their children.
In some cases, if the named executor of a will is no longer alive, competent, or willing to accept the responsibilities, the court may appoint someone else to administer the estate. This is called ‘Letters of Administration with the will annexed.’
What issues may arise when applying for probate?
When you apply for probate, there are a number of issues you need to be aware of:
- the will must be valid
- it must be the last will made by the deceased
- people may contest the will.
(The will may be contested on the grounds of the deceased person’s capacity or if they were under undue influence when writing their will.)
We recommend that probate or Letters of Administration be obtained as soon as possible. This helps eliminate the possibility of fraud. For example, bank accounts may be able to be accessed illegally and funds withdrawn before the accounts have been frozen.
Have a question?
We can provide impartial obligation-free advice about your role as an executor.
Choose State Trustees
Estate administration is usually a long and time-consuming task. Without the required knowledge and skills in law, accounting and business, the task can become an unexpected burden. If you believe the role may be too much of a burden, you are allowed to ask for help.
At State Trustees we have the expertise to administer your loved one’s estate. We are skilled in all aspects of estate administration and will remain professional and impartial at all times.
As Victoria’s leading estate administrators, we can take care of everything your loved one wanted and act in the best interests of their beneficiaries.