Probate

Clear, concise advice From Madden Law about Probate

What is Probate?

A “Grant of Probate” is the document issued by the High Court Probate office, after a valid Will has been administered by their office. It is the document that gives the Executors the authority to deal with the assets of the deceased person. For example, bank accounts can be closed and property can be sold. Then the Executor distributes the assets of the estate in accordance with the terms of the Will. 

What if a person died without a Will?

Then the document that issues from the High Court Probate Office is called “Letters of Administration “. This is the document that gives Administrators authority to deal with assets of the estate, example close bank accounts and sell property. The assets will usually be distributed under the rule of Intestacy, as there is no Will to direct distribution of the estate. 

What an Executor should do, after a person dies

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Locate the Will

Locate the original Will. It will name the Executors, who become the trustees of all of the deceased’s assets, from the date of death.

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House

If the house of deceased is vacant, make sure it is insured and secure.

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Death Certificate

Order a death certificate for the deceased.

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Accounts

You should advise the state pension that the death has occurred, to avoid over payments being made to the account.

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Assets

Print off bank statements, policy documents and other assets to begin preparing a schedule of assets for the deceased.

Frequently Asked Questions about Probate

No, the application only requires one Executor. The named Executors who do not wish to act, have two choices. They can either reserve their entitlement to extract a grant. This means they just step aside and could step back in later if needed. They could also renounce their entitlement to extract the Grant of Probate. If this is done, the Executor cannot step back into the role. 

The Will should be reviewed to see does it make an provision for payment to the Executor. If the Executor is providing professional services and there is a charging clause in the Will, then the Executor can be paid. This is provided that Executor did not witness the Will, as this invalidates the charging clause. Non professional executors are entitled to their expenses incurred for administering the estate. The Executor has a fiduciary duty to the estate and its beneficiaries and should not gain from the estate.

Usually, it takes approximately 12 months for the estate to be administered and assets distributed. The processing time in the High Court Probate office varies. The duties of an Executor last for a life time. Often assets come to light after the estate has been distributed. These assets must be distributed by the Executor also. If a subsequent Will came to light after a prior one was administrated, an Executor is obliged to revoke the prior Will and administer the later one. 

There is no time frame set out by the law. The law says that no court action can be taken against an Executor in the first year of the person ‘s death. However, if an Executor did not take out the Grant of Probate in the second year after a person died, that would not be grounds to remove the Executor. There is a high bar to be achieved to remove an Executor. The delay in taking out the Grant of Probate would have to be substantial in order to remove the Executor. 

No, the application only requires one Executor. The named Executors who do not wish to act, have two choices. They can either reserve their entitlement to extract a grant. This means they just step aside and could step back in later if needed. They  could also renounce their entitlement to extract the Grant of Probate. If this is done, the Executor cannot step back in to the role. 

The Will should be reviewed to see does it make an provision for payment to the Executor. If the Executor is providing professional services and there is a charging clause in the Will, then the Executor can be paid. This is provided that Executor did not witness the Will, as this invalidates the charging clause. Non professional executors are entitled to their expenses incurred for administering the estate. The Executor has a fiduciary duty to the estate and its beneficiaries and should not gain from the estate.

Usually, it takes approximately 12 months for the estate to be administered and assets distributed. The processing time in the High Court Probate office varies. The duties of an Executor last for a life time. Often assets come to light after the estate has been distributed. These assets must be distributed by the Executor also. If a subsequent Will came to light after a prior one was administrated, an Executor is obliged to revoke the prior Will and administer the later one. 

There is no time frame set out by the law. The law says that no court action can be taken against an Executor in the first year of the person ‘s death. However, if an Executor did not take out the Grant of Probate in the second year after a person died, that would not be grounds to remove the Executor. There is a high bar to be achieved to remove an Executor. The delay in taking out the Grant of Probate would have to be substantial in order to remove the Executor. 

If the last known location of the original Will was with the deceased person, the law will presume that the person destroyed it. If there is a copy of the Will, then an application can be made to Court to rebut that presumption. This is often a difficult application to make successfully unless there is very strong evidence to suggest the Will was lost instead of destroyed. If this application does not allow the copy Will to be admitted for Probate and there is no prior Will, then the estate must be administered under the rules of intestacy. 

If there is a copy of the Will available and the last known place the original was in the office of the deceased person’s solicitor, then the law does not presume that it was destroyed but merely mislaid. An application can be made to the court to accept the copy Will, as a true copy of the last Will made the deceased. If that application is granted, the copy Will is used to apply for a Grant of Probate. 

The Will still remains valid. The people who are entitled to administer the estate, are either the people named in the residue clause of the Will (if the Will has residue clause) or the people inherit the entire estate (if the Will has no residue clause). Often this can be a number of people. They then all have an equal entitlement to apply to the High Court to administer the estate. 

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Madden Law

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