Deceased Estates and Probate
What is Probate? Obtaining “Probate” is the process of having the Supreme Court confirm that a Will is valid. Probate also authorises the Executor named in the Will to administer the estate in accordance with the Will.
When do you need to get Probate?
Whether or not Probate is needed will depend on the nature and value of the deceased’s assets.
For example, if the deceased had a large bank account, valuable shares or real estate in their own name, Probate will be needed. Probate won’t be needed if all the deceased’s assets consisted of property jointly owned with another person, or if the assets (other than land) have a low value.
How do you get Probate?
I can do it for you. The Probate application involves preparing the necessary forms, advertising the deceased’s death and lodging the application with the Supreme Court. There is a Court filing fee. The Court usually acts fairly quickly.
Once you have Probate, I can assist you to complete your duties as Executor, including collecting and maybe selling the assets, paying the debts and distributing the net estate to the beneficiaries.
What happens if there is no Will?
The first step is to make a thorough search for a Will. If a Will can’t be located, you may need to apply to the Supreme Court for “Letters of Administration”. The Court can appoint you as an “Administrator”. You will have similar functions and duties to an Executor.
The deceased’s net estate will be paid to beneficiaries according to a statutory “intestacy” formula.
I can prepare all the documents and advise you on all steps in the process.
Family provision claims
It is sometimes said that: “where there’s a Will, there’s a relative”.
You have the freedom to make your Will and decide who you want to leave your assets to when you die. But under legislation, Courts have the power to override your Will and give part of your assets to “eligible persons”. An “eligible person” is someone you have a legal or moral obligation to support. It is defined to include a spouse, de facto, child (whether adult or minor), ex spouse, dependent grandchild, anyone living with you who was financially dependent on you, and anyone else with whom you had a close personal relationship.
To succeed in a claim against your estate, a claimant must prove that he or she is an “eligible person” and that you did not adequately provide for their proper maintenance, education or advancement in life. The Court can consider any relevant matter as it weighs and balances all the circumstances of the case. Courts tend to give particular weight to the financial needs and resources of the claimant.
I can advise you on potential family provision claims against an estate.
I can also advise you on challenging a Will for other reasons, including invalidity of the Will or breach of promise.