Probate Lawyers - Procedure of Obtaining Probate

Probate Lawyers -
Procedure of Obtaining Probate

There are 3 phases required in obtaining probate.

Phase 1 – Do you need Probate?

One of the first things you will need to do as an executor is determine with your probate lawyer if it is necessary to get a get a grant of probate. Probate is a declaration from the Court validating that the will is proper and that you are the correct person to be the executor.

Obtaining probate in your favour gives you the legal capacity to deal with the deceased’s assets by:-
1. transferring them,
2. redeeming them,
3. selling them and
4. fulfilling the instructions in the will as to how to distribute them.

As executor you should identify and gather as much information as possible about the deceased’s assets and debts including property, shares, insurance, superannuation, etc.  

Without a grant of probate you will not be recognised as having the right to deal with the deceased’s assets by the asset holders, such as banks, financial institutions, stockbrokers, the Land Titles Office, etc.

Phase 2 – Obtaining Probate or Letters of Administration

Once your probate lawyer has determined that a grant of probate is necessary and you have gathered all of the relevant financial information your probate lawyer will prepare and lodge an application to the Court. Obtaining a grant of probate is normally a purely clerical matter.

If the deceased died without making a will, or if they left a will with defects then a “letters of administration” or “letters of administration with the will annexed” application is necessary, rather than an application for probate.

What happens if you do not need Probate or Letters of Administration?

Even where the deceased has left substantial assets, there are some circumstances where neither a grant of probate or letters of administration are needed.

  • Firstly the obligation to obtain a grant of probate is dependent on the type of ownership of the assets. If the deceased held jointly owned assets then the assets may automatically transfer to the surviving joint owner.
  • Secondly if the assets are relatively low in value probate may not be required. 

What is the amount of a relatively low asset?

1. Each asset holder, whether it be a bank or other financial institution, has a different threshold amount under which they will release the deceased’s assets without a grant of probate.

2. In place of a grant of probate they will require you to provide certified copies of various documents, statutory declarations and indemnities promising that if it is found that the funds have been released to the wrong person you will give them back.

3. A grant of probate is often a more attractive option to executors who did not know the deceased person well in order to protect themselves against personal liability if something were to go wrong.

4. Avoiding probate is often a more preferable option for close family members of the deceased who have full knowledge of the deceased’s affairs as this saves on the legal costs and time involved in obtaining a grant.

Once the correct information is gathered together about the deceased, an application for a grant of probate can be made to the courts. The application process is usually dealt with by your solicitor and does not require an appearance in court.  

Phase 3 – Administrating the Estate

Upon obtaining a grant of probate (or letters of administration) the executor (or administrator) can begin the task of carrying out the instructions of the will as per the will-makers intentions.

This commonly involves liquidating bank accounts, transferring shares and property, and distributing the deceased’s personal items. Prior to the distribution of these assets to beneficiaries the executor must have appropriately advertised the intention to apply for probate in the relevant place, to ensure that no claims exist and no later version of the will exists. Some argue that the executor should wait one year before distribution to the beneficiaries to ensure no late claims are made and accepted post distribution. Your probate lawyer will advise you about this.

Before any beneficiaries receive their gifts it is the responsibility of the executor (or administrator) to complete payment for the deceased’s death and testamentary expenses out of the estate monies.

The executor (or administrator) must also remove the deceased’s name from the electoral role, complete any final tax returns, pay any outstanding debts and transfer all entitlements under the will as appropriate. The executor may be entitled to compensation for their pain and trouble of carrying out the duties of administering an estate. Your probate lawyer will talk to you about the rights an executor may have to compensation.