Probate

When someone passes away, there is often much to be done for the people who are left behind. Sometimes, applying for probate feels difficult, time-consuming and emotional, and can be very overwhelming for the person or people named as executor. However, with the right support and guidance, the process can feel a lot less painful.

An executor is the person nominated by the deceased to take care of their estate once they have passed away. The duty of the executor is to obtain probate by first collecting the deceased’s assets, paying any outstanding debts and then distributing the assets to the beneficiaries.

Once probate has been granted, the executor is legally responsible for the estate. They are responsible for:

• Calling in the assets

• Paying the liabilities

• Notify the beneficiaries

• Publishing a notice of intended distribution, and

• Finalise the deceased’s tax obligations (for example, lodging a final tax return)

The timeframe will depend on the complexity of the will and the size and nature of the estate.

Applications for probate should be made within 6 months from the date of death of the deceased, unless there is a reasonable explanation for the delay.

Probate is not always necessary, and whether it is required will depend on the size and kind of assets that the deceased has left behind. Instances where probate will generally not be required include:

• Where the estate is of low value (such as less than $25,000 in the bank)

• Where the only assets were jointly held

When someone dies without a will, this is known as dying “intestate”.

In these circumstances, the Court will issue “Letters of Administration” instead of Probate. The effect of Letters of Administration is the same as Probate, it is just the process that differs. People who are entitled to assets of the deceased are:

1. Surviving spouse, or ex-spouse
2. An adult child
3. A person who was dependant on the deceased or was a member of their household