If someone dies leaving a valid Will you have to apply for probate. Probate is the process of proving a deceased person’s Will to the Supreme Court. Once probate is granted, the executor named in the deceased person’s Will who has made the application for the grant of probate has the power to deal with the assets and liabilities of the estate, in accordance with the terms of the Will.
The first step to obtain a grant of probate is to determine if the deceased had a valid Will. You will need to determine:
- Did they have testamentary capacity (that is, were they mentally capable to make the Will);
- Was the Will properly executed;
- Did they marry or divorce after making the Will; and
- Is it their last Will.
The next step is to determine the deceased’s assets and liabilities, at the date of their death and their values. This involves, and is not limited to, the following examples:
- What real property was owned by the deceased, how it was owned (whether it was a tenants in common or joint tenancy) and the value of the property;
- What were the deceased’s bank accounts, shares owned, trusts, companies, personal effects and what were the values of those at the date of death;
- Whether the deceased was involved in court proceedings prior to his or her death that can be continued by the estate;
- What loans and credit card debts were due; and
- What other bills does the deceased owe.
Once the information is gathered, an application for a grant of probate can be made to the Supreme Court. The application is usually dealt with administratively and thereby requires no appearance in the Supreme Court.
Once probate is granted, the next stage of the process is administration of the estate. This involves transferring the assets into the name of the estate and distributing them pursuant to the terms of the Will. It can take a few weeks or alternatively it can take six months or more depending on the nature of the assets. If the Will is challenged by someone the probate application or the administration can be delayed until the dispute is settled or determined by the court.
Working with Lynn & Brown Lawyers, we can help you obtain the grant of probate and minimise any delays. Furthermore, we can take the burden of dealing with the administration complexities away from you during a very difficult time. If a dispute arises, we are able to assist the executors settle or defend any challenges to the Will. We also act for parties wanting to attack the provisions of a Will.
About the authors:
This article has been co-authored by Ryan Ashoorian, who is an experienced lawyer in the areas of commercial law and probate & Wills, and Steven Brown, Director who has over 18 years’ experience in legal practice and practices in commercial law, business law and estate planning.
