Probate is a critical legal step that is required before a legal personal representative, also known as an executor, can administer a person’s estate and distribute it to the beneficiaries. Simply, it means the court issues a document confirming that the will is valid. It also confirms the appointment of the executor.
It’s officially called a grant of representation. There are two types of these grants:
- Probate – where there is a will
- Letters of administration – where there is no will
A grant of representation gives a person the legal right to administer the estate of a person who has died.
Some small estates might not need a grant of representation.
Why do you need a grant of representation?
The grant of representation gives the executor or administrator the authority to deal with assets, such as bank accounts, shares and property. It means the assets can be transferred to the name of the executor or administrator so that they can deal with them, transfer or sell them. Without the grant of representation, the executor or administrator can’t distribute the assets to beneficiaries. Beneficiaries are the people that are left something in the will or under the law of intestacy– like money, property or belongings.
The deceased person’s bank accounts will be frozen (usually except to pay for the funeral) until you have the grant of representation.
Probate makes the will legal
The court needs proof that the executor listed in the will is alive, willing and able to do the tasks they need to do. It decides if the will is the last will that the deceased person made. It also confirms that there are no objections to the will being valid.
How do you apply for probate?
An executor can apply for probate or they can ask a solicitor or trustee company to do it for them. There are a series of steps you need to go through to apply – including advertising online that you are applying. When you submit your application for probate to the Supreme Court, you need to include the deceased person’s will, death certificate and a confirmation of the estate’s assets. You also need to include an affidavit. An affidavit is a legal document that, in this case, proves to the court that the executor will administer the estate well and in line with the law.
What if there is no will?
When a person dies without a will (intestate), there is no executor to administer the estate. In these cases, the closest next of kin can apply for letters of administration.
The closest next of kin can also appoint a trustee company, like State Trustees, to do this for them.
- Read more about what happens when there is no will.
What are letters of administration?
Letters of administration are the court’s approval for someone to administer the estate of a person who dies without a will. Usually the next of kin applies to administer the estate, or if there is no next of kin who can or want to do it, State Trustees may apply.
What issues can come up when applying for probate?
When you apply for probate, there are a number of issues you should be aware of. The person’s will may be contested or challenged if someone believes the person:
- Didn’t have the capacity to make the will. If someone doesn’t have capacity, they are not able to make their own decisions
- Was facing undue influence when they made the will. Undue influence is when someone convinces another person to do something that they wouldn’t normally want to do.
Getting the grant of probate can also be delayed by:
- Problems with the will, such as it not being witnessed properly or being damaged
- An informal will – a document listing a deceased person’s wishes that doesn’t meet the requirements for a valid will
- Using a copy of the will – when you can’t find the original.
How long does probate take?
Being granted probate usually takes two weeks from when you apply.
If more complicated information is needed or if there are questions from the registrar of probates, it may take longer to obtain a grant of probate.
Next steps
We recommend that you apply for probate or letters of administration as soon as possible. The longer you wait, the more chance there is that the assets might have expenses that need to be paid. Beneficiaries may get frustrated waiting for you to pay them and if the delay is long, you may be removed as executor. Probate also helps get rid of the possibility of fraud.
If you still have questions and need more information, contact us now to speak with one of our consultants and talk about your options.
Work with us. Contact State Trustees on 1300 138 672. With almost 80 years of experience of protecting the interests of Victorians, you can rely on us to give you peace of mind where wills are concerned.
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