Probate

When someone dies it may be necessary, if they have a Will, to obtain a grant of Probate (“Probate”) or, if they do not have a Will, obtain a grant of “Letters of Administration” (“Letters”).

Where there is no Will, legislation in each State sets out who will be the relevant beneficiaries.

A grant of Probate or Letters is necessary when a deceased owns real estate, or there are significant funds in a bank or other significant financial assets and the bank or asset registry requires a grant before they will pay out or transfer. 

For example, if the deceased has been in aged residential care, the provider will typically require there be a grant before the residential accommodation bond can be released. 

Application for a grant must be made to the Supreme Court in the State where the asset is located. At a minimum, an application involves the preparation of an affidavit and inventory of assets to be sworn or affirmed by the Executors or Administrators and filed with the Court. Not infrequently, other evidence is required for an application, particularly where there is no Will. Plus the Court may issue requisitions requiring further evidence. These are all tasks I regularly attend to for Executors and Administrators.

If the deceased owned land in more than one State, a grant in one State needs to be “Resealed” in the other State(s). 

Following a grant of Probate or Administration, land is transferred out of the name of the deceased by lodging a Transmission Application with the State Land Registry. This is something I regularly attend to for clients.

Where there is real estate to be sold, I regularly handle the conveyancing on behalf of the Executors/Administrators.

Capital Gains Tax can apply on the sale of the deceased’s real estate, however, there can be an exemption for the deceased’s home if the sale takes place within two years of the death. The sale must settle within that period, it is not sufficient to just sign contracts within the period.

Superannuation benefits are not necessarily paid to the estate of the deceased. The superannuation fund trustee may determine that the benefits be paid to a particular person. Also, some superannuation accounts do not have a death benefit.

Following the grant of Probate or Letters, I typically assist clients to collect in the assets and monies in the deceased estate and then organise the distribution to the beneficiaries. Often the funds are collected into my trust account and distributed from there. For the benefit of the Executors and Administrators, I obtain suitable receipts and acknowledgements from beneficiaries.

Executors and Administrators may have to deal with disputes including: disagreement about what the Will says; allegations the deceased did not have intellectual capacity when making the Will or was overborne by someone; claims by a beneficiary or potential beneficiary that greater provision or some provision should have been made for them by the deceased (i.e. a claim for “family provision”).

If there is a risk someone may make a claim for family provision, it would be wise for the Executors not to distribute the Estate to beneficiaries until at least the claim period has expired (12 months from date of death in New South Wales and 6 months from grant of Probate in Victoria).

I have assisted clients with Supreme Court litigation in this respect and can advise Executors on their options.

Please note: The foregoing text is a generalised guide only and may not cover the requirements for your particular situation.