Understanding some basic aspects about the process of ‘probate’ and ‘estate administration’ can assist you to understand what needs to be done, and to make what can be a very emotionally difficult time a bit easier.
When someone dies, their legal and financial affairs need to be clearly identified and finalised.
Often these matters need to be dealt with soon after the person has died, which is the most stressful time for family and friends. We can help make this time in your life a little easier by guiding you through the process. Here’s some common questions that we get asked about probate and estate administration.
1. Does an Estate always require Probate?
If someone dies leaving a valid Will, a probate application is not necessarily a foregone conclusion.
Many people can avoid the necessity for probate if they structure their affairs so that their assets are held ‘jointly’ with their spouse or partner. For example, if a husband dies (survived by his wife), and all his assets such as his bank accounts, motor vehicles and real property are held in joint names (as ‘joint tenants’), probate will not be required.
Click here to find out more about when a grant of probate may be required.
2. What is involved in preparing a Probate Application?
The complexity of a Probate Application will depend on the number and type of assets that the deceased held at the date of death.
With any Probate Application you will need to gather together a number of key documents. Click here to find out more about the documents you will need for a Probate Application.
A Probate Application consists of a comprehensive online form that requires details of the deceased, the executor(s) named in the Will, and the assets and liabilities of the Estate.
Other documents that are sometimes required as part of the Application are:
- Affidavit of Alias, if the deceased’s name was misspelt on the Will or if the deceased used multiple names or versions of their name;
- Affidavit of Plight and Condition, if the Will has been altered from its original form, such as staples being removed or handwritten markings; and
- Affidavit as to Due Execution, if there are any questions as to the validity of the Will or the testamentary capacity of the deceased. This form of affidavit will usually be required if different coloured pens were used by the deceased person (‘testator’) and the witnesses when signing the Will.
Call us on 1300 654 590 or email us for timely and competent assistance in preparing your Probate Application (or application for letters of administration) or Click here to find out more about how we can help you by giving straight answers and offering our professional probate services for a fixed price.
3. What happens when the Will contains an error?
Occasionally, Wills contain errors. This happens most commonly when there are multiple codicils, or when the Will has not been prepared by a lawyer.
Smaller issues (such as name misspellings, incorrect addresses, etc) can be dealt with by sufficient but brief explanations in the Probate Application. However, errors that “muddy” the gifting intentions of the deceased require more formal correction, known as ‘rectification’.
If a lawyer was responsible for the error, the lawyer (or the lawyer’s insurer) may be responsible for bearing the (reasonable) cost of the rectification.
If you are concerned that a Will may contain an error, call us on 1300 654 590 or email us to better understand your options to deal with this, so that your application for probate is not unnecessarily delayed.
4. What happens if the deceased died without a Will?
If the deceased died ‘intestate’, i.e. without a valid Will, an application for Letters of Administration (not Probate) is made. A person is appointed as an ‘Administrator’ to finalise the personal affairs of the deceased person.
The person that takes on the role as Administrator is determined by relationship to the deceased, in the following order:
- Spouse/partner;
- Child (if adult);
- Mother/father;
- Brother/sister;
- Grandparent; and
- Uncle/aunt/niece/nephew.
In the alternative, someone may nominate themselves as Administrator, and this is usually possible as long as people with a higher priority agree to the nominated person’s assumption of the role.
If the deceased has died without a Will, or you believe there may be issues with the validity of the deceased’s Will, call us on 1300 654 590 or email us to find out what your options are.
5. How long and how much?
The main concerns we find clients have in relation to Probate are:
- How much will it cost to get Probate?
- How long will it take to get Probate?
We aim to keep the process smooth and timely, by telling you what documents we will need at the start, so you have time to think about where those documents are, and what additional enquiries you need to make to complete the application.
We also clearly itemise the anticipated costs. This includes the unavoidable Court Application Fee. Clients often ask us how they can keep costs down for the preparation of the Application. Getting the documents to us quickly and in one go will help keep costs down, as will sorting them into an order that makes some sense.
Click here to read more about our fixed fee Probate Services.
We also get asked how long Probate takes to get. This will depend on two factors – one is in your control (your preparation of the application), the other is outside of your control (the Court’s timeline for processing). Click here to read more about how we can help you get Probate quickly and with little fuss.
If you would like our assistance in working out if you need to apply for probate, and if so, making the application, call our friendly team on 1300 654 590 or email us.
The information contained in this post is current at the date of editing – 23 February 2024.
