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What is Probate?

Probate is a critical legal step needed before a person’s estate can be administered and 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, of which there are two types: Probate and Letters of Administration.

Some small estate might not require a grant of representation.

Why is Probate needed?

A deceased person cannot hold bank accounts, shares, real property, cash, superannuation or furniture. They can’t receive income or 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 validity of the will.

Why is Probate important?

Without Probate an executor does not have the authority to administer the estate and would not be able to transfer estate 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 an application for a grant of representation known as Letters of Administration will need to be made.

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. This is usually made by the next of kin, or if there is no next of kin willing or able to act State Trustees may make the application.

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 deceased person’s Will may be contested on the grounds that they didn’t have the capacity to make the Will, or they were under undue influence at the time of making the Will.

Next steps

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.

If you still have questions and need more information, contact us now to speak with a State Trustees consultant to discuss your options.

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