In our third and final part of our Legal Life after Death series we discuss the various legal documents and processes which take place after someone has passed away to distribute their assets.
A Will is a legal document that states how a person’s belongings are to be distributed after their death.
The Executor of the Will is the person responsible for distributing the deceased’s assets to the people named in the Will after any debts are paid.
There is no central depository for Wills and if a Will cannot be found amongst the deceased’s personal papers it is recommended that investigations are made with local solicitors and accountants to see if they hold a Will. A solicitor or accountant may be able to assist you in the process of searching for a deceased’s Will by contacting other practices or publishing notices in their respective professional publications.
If the deceased has not left a Will, or a Will cannot be found, the estate is shared under a formula set by law. If there are no close relatives there is a chance the estate could be paid to a state or territory government
When a person dies without leaving a Will, also known as Intestate, their estate does not automatically pass to the State (Crown), as is often assumed. Legislation in each state determines exactly how the estate is to be divided amongst surviving relatives.
Where there is a Will, it is generally the Executor of the Will who administers the deceased’s estate and handles the distribution of their assets and payment of any debts. In order to get authority to do this, a Grant of Probate from the Supreme Court is generally required.
To obtain a Grant of Probate, the Executor named in the Will must:
- Publish an online notice of intention to apply for a grant on the Probate Registry. The purpose of publishing a notice of intended application is to allow the deceased’s creditors an opportunity to make a claim on the estate by contacting the person who is intending to apply for the Grant of Probate. A notice of intended application also gives notice to anybody that may intend to challenge the contents of the Will, the validity of the Will or who may have knowledge of a later or alternate will; and
- Wait at least 14 days from the date the notice was published before filing an application for probate with the Supreme Court.
An application for probate must be accompanied by various documents including the original Will, original Death Certificate, affidavit sworn by the Executor, schedule of the assets and liabilities of the deceased, inventory of property owned by the deceased, list of the beneficiaries and the Supreme Court filing fee.
Once a Grant of Probate has been given, management of the deceased’s assets can be transferred to the Executor and they may commence distributing assets to beneficiaries in accordance with the Will.
All Grants of Probate are stored, along with the corresponding Will, at the Supreme Court. These are public documents. If a deceased person does not have a Will, validation of their estate and beneficiaries is not done with a Grant of Probate, but with a similar document known as ‘Letters of Administration’ (discussed in more detail below).
If a person died without independently owning any property (for example any property may have been jointly owned with their surviving spouse), or only had only a small amount of money to his or her name, a Grant of Probate may not be required. If you are unsure seek the advice of a solicitor.
Timeframe to lodge the application
If an application for probate is filed after 6 months from the date of death of the deceased, an explanation must be given to the Court accounting for the delay.
How long does it take to obtain a Grant of Probate?
An application for a Grant of Probate will be considered by a registrar.
Approximate processing times are published on the Supreme Court website but generally it takes 4-6 weeks to obtain a Grant of Probate for a non-complex matter. Complex applications may take additional time to be considered.
Letters of Administration
When a person dies without leaving a Will, also known as ‘Intestate’, the next-of-kin needs to obtain a Grant of Letters of Administration in order to administer the estate.
If a person dies without a Will, their estate does not automatically pass to the State (Crown), as is often assumed. Legislation in each state determines exactly how the estate is to be divided amongst surviving relatives, and who will be appointed the administrator.
The application for a Grant of Letters of Administration can be quite complex as it is often unique to the particular circumstances of the deceased and involves the drafting of legal affidavits, consent forms and disclaimers. The legal process involves steps similar to those required for a Grant of Probate, although additional information is required regarding the searches undertaken to try and locate a Will, identification of the deceased’s spouses and family members.
At Black and Blanco, we take the time to understand your personal circumstances and wishes and make things easy by coming to you, outside of office hours if necessary and providing fixed fee quoting. Contact us to organise an obligation free 20 minute telephone consultation.