Prior to my admission as lawyer, I worked as a Probate clerk, and when I would tell people my occupation the response was generally “what is that?” It’s a fair question, so let’s look at what exactly Probate is, and why there’s a good chance you’ll encounter it if haven’t already.
What is Probate?
Probate is the legal process that confirms a person’s Will is the last valid Will, and it provides the Executors of the Will legal authority to deal with the Estate of the Will-maker.
Once a person has passed away, their assets and debts form their Deceased Estate, or simply Estate. In order to finalise an Estate, the various assets need to be identified and transferred to the ‘estate’ (to be under the control of the Executor), debts paid, and then remaining assets passed on to the beneficiaries of the Estate.
A Grant of Probate is one of two types of Grants of Representation for Estates, the other being a Grant of Letters of Administration which is the version that is used when a person dies ‘intestate’, or without a Will. While an application for Grant of Probate is lodged by the Executors appointed by the Will, a Grant of Letters of Administration must be lodged by the appropriate next of kin of the person who has died.
An application for Grant of Representation includes a number of documents such as an Inventory of Assets and Liabilities of the deceased at the time of their death, the original Will in the case of Probate, and various other documents to establish what the Estate comprises and how it is to be handled.
Once issued by the Supreme Court of Victoria, the Grant of Representation allows the Executor, or Administrator in the case of Letters of Administration, to “step into the shoes” of the person who passed away to transfer or sell real estate, close and release funds held in bank accounts, and generally manage their affairs to make sure everything they owned goes to the correct place.
When is Probate needed?
As I am sure you have gathered, Probate is only needed once someone has passed away; however, even then it is not always necessary.
Whether or not you need to apply for a Grant of Probate will depend on the assets of the Estate. If there’s real estate, you’re generally going to need it. If there are bank accounts or investments containing large amounts of money, it’s very likely you will need it. If Probate isn’t needed, the Executors can generally manage and finalise an Estate with just the Will.
The reason Probate is often required when you are trying to deal with assets over a particular value is to offer protection to the bank or other financial institution. People may make multiple Wills during their lifetime, and this may present an issue to a financial institution who releases funds without requiring that a Grant of Probate be produced.
Consider this example:
Ned passes away, leaving two children who don't get along with each other. Ned made a Will in 2005 naming his daughter Penny as the Executor, and gave her a copy. When Ned passes away, Penny takes the Will and a certified copy of the death certificate into Ned's bank and completes all the documentation to close Ned's account and distribute the balance of the funds into an Estate account in Penny's control (as the Executor).
A week after the bank has closed the account and released the funds to Penny, Ned's son Xavier writes to the bank, enclosing a certified copy of Ned's Will dated 2008, which appoints Xavier as the Executor. Xavier asks that Ned's account be closed, and the funds transferred in accordance with his instructions.
In this scenario, the bank has dealt with the deceased's account in accordance with a Will, on instructions of the Executor named in that Will. The bank was not notified that there was a later Will, which revoked the 2005 Will, until after the funds have already been paid out. Clearly, this would result in a very unhappy Xavier, who may take issue with the bank.
By requiring a Grant of Probate, the bank (or any other institution through which assets may be held) can rely on a process having been already undertaken to confirm that the Will being presented is the most recent Will, and the person they are taking instructions from has been authorised by the Supreme Court.
What do I need to do if I'm the Executor of an Estate?
If you have been appointed as an Executor by the Will of a person who has recently passed away, there are common things that can arise and of which you should be aware) however, just as every person is different in some way, every Estate will also have its own specific features that determine how it must be handled. As a Wills & Estates lawyer I can answer any of your questions and am available to assist you with whatever Wills, Estates, Probate or Estate disputes needs you may have.
If reading this article has prompted, you to think you need to get your Will organised or if you simply have a few questions please reach out to myself Luke Palmer or to experienced Wills & Estates lawyers via phone on +61 3 9822 8588 or online here.
Insight written by Luke Palmer