Probate & Administration
Probate
Probate is the term which refers to the application to and the process by which Courts allow for the legal transfer of assets from a deceased person to beneficiaries, in accordance with the instructions contained in a valid will of the deceased. This legal process culminates in a document issued by the Courts and is referred to as a Grant of Probate.
Executor
The executor(s) appointed in the will becomes the legal personal representative(s) of the estate and works with your solicitor. You can leave the assemblage and execution of documents and affidavits as well as application for grant of probate to us. A Grant of Probate permits an executor and your solicitor to begin the process of writing to the various stakeholders in possession of the deceased’s estate, including banks, land registries for real property, share registries, superannuation including SMSFs and however else assets may be held.
Once called in, the assets are distributed in accordance with the deceased’s will.
It should be noted that the estate is also responsible for settling the deceased’s liabilities and debts.
There is no estate duty in Australia and this process therefore does not attract that particular tax component. Investments including investment properties may attract Capital Gains Tax when sold, as would anyhow have been the case.
Letters Of Administration
The term letters of administration refers to the process and the type of grant which is issued where a deceased did not have a will. This circumstance is referred to as intestacy and the deceased has died intestate. In the absence of legally valid information expressing the deceased’s wishes, the Courts will rely on a ranking of beneficiary entitlement contained in legislation. The particular legislation containing this ranking is in Chapter 4 Succession Act 2006 (NSW); Part IA Administration and Probate Act 1958 (VIC); and Part 3 Succession Act 1981 (QLD).
This process involves additional steps and can be significantly more complex than would otherwise have been the case, through a valid will and Grant of Probate. Legislation cannot take into account the wants and wishes of the deceased for the simple reason that they have not been documented and hence requires a clinical and methodical process of elimination in arriving at who is ultimately ruled as possessing beneficial interest.
An executor, now termed an administrator, must seek formal consent in writing from other co-eligible parties who may not be making the application.
Entitlement to the deceased’s estate also extends to the heirs of the separate estates of certain parties who have predeceased the deceased. In a number of cases, we have had to exhaustively research branches of the deceased’s family tree in search of potential beneficiaries and proof of familial connection going back decades.
These searches and provision of evidence are not optional, as the courts require that all beneficiaries who may be entitled under legislation be documented and entitlement specified.
All of these steps can open up a pandora’s box. The law has to take an objective view of biological and familial connection with the deceased, without consideration of the actual subjective elements, in terms of the relationships the deceased had with them, or what the deceased’s own sentiments might have been.
This necessarily dispassionate approach by the courts can lead to a myriad of real world dismay (depending on one’s position). The real issue here is how a simple omission, in not preparing a will, may lead to totally unintended and unforeseen consequences.
Please contact us so that your will and your intentions are clearly available for when they are needed.
Letters Of Administration With The Will Annexed
An application for a grant of letters of administration with the will annexed can arise through a number of circumstances including the following: an executor may no longer be available; the original of a will may be lost and a copy submitted; or there may only be an informal will, referring to wills which may not meet formal legal requirements, but which the courts may be prepared to consider as expressing the intentions of the deceased.
Reseal Of A Grant
The issue of real property or other assets physically located in other Australian states from the state in which the deceased was domiciled may require what is termed as a reseal of the grant from the issuing state in the state where additional property may be located.
A reseal may also be required in circumstances where assets are located internationally.
The effect of a reseal is to have the courts of the relevant alternate jurisdiction, within or outside Australia, authorise the transfer of assets located therein to the beneficiaries in question.
