Probate

Probate is an order that is made by the Supreme Court. It allows an executor named in a deceased person’s Will to administer a deceased person’s estate. This means that the executor can collect estate assets and distribute the deceased person’s estate according to the terms of the deceased person’s Will.

Not just anyone can apply to the Supreme Court for a grant of Probate. Only the person or persons named in the Will of a deceased person are entitled to apply to the Court for a grant of Probate.

Letters of Administration is applied for if:

• the deceased person did not have a Will; or
• the deceased person did not name an executor; or
• the executor named in the deceased’s Will is not willing to apply for a grant or unable to apply for a grant of Probate.

If no-one is able to apply for a grant of Probate, then the application must be for a grant of Letters of Administration rather than a grant of Probate.

You may not be required to apply for a grant of Probate or Letters of Administration in some circumstances. For example if the deceased did not own any property or had a small amount of money only, it may not be necessary to apply for a grant of Probate or Letters of Administration. It will depend on the requirements of the asset holder, for example the bank.

Also in circumstances where property was held by the deceased person jointly with another person, it may not be necessary to apply for a grant of Probate.

If a loved one has passed away, the first step is to contact their asset holders, for example the bank or financial institution where they held money. You will need to find out from the asset holders if a grant of Probate of Letters of Administration is required to release your loved one’s assets.

If you have any questions about applying for a grant of Probate or Letters of Administration, please call us on 1300 038 223. One of our experienced lawyers is able to discuss the steps for obtaining a grant of Probate or Letters of Administration in further detail with you.

What is Probate?

Probate is the proving of a deceased person’s will and is obtained from the Supreme Court of the ACT. When someone dies a person or persons will need to deal with the estate. That person is usually the executor named in the will.

Before a named executor can deal with the assets of the deceased person they first need to prove the will. They do this by applying for a grant of probate from the Supreme Court. If the application is successful, a grant is issued.

A grant of probate acts as proof that the deceased person has died, the will is valid and the executor has the authority to deal with the deceased person’s estate.

Who is Entitled to Apply for a Grant of Probate?

Only an executor named in a deceased person’s will may apply for a grant of probate. If the named executor is unwilling or unable to act as the executor then another appropriate person may apply for a grant of letters of administration.

What are the Rights and Duties of an Administraotr?

An administrator has the same rights, liabilities and accountability as an executor.

However, certain types of grants of letters of administration have limitations which effect what rights the administrator has. For example, some grants may allow an executor to sell the assets of the estate but not to otherwise deal with the estate.

When is a Grant of Probate Required?

When someone dies, it may be necessary to apply for a grant of Probate.

Probate is a Court order allowing an executor named in the Will of a deceased person to administer the deceased’s estate. The purpose of this is to enable the executor to collect the deceased’s assets and distribute the deceased’s estate pursuant to the terms of the deceased’s Will.

It may be necessary to make an application for a grant of Probate if:

• The deceased person had a Will;
• The deceased person named an executor(/s);
• The executor(/s) named in the deceased’s Will is(/are) willing and able to apply for a grant of Probate

If the deceased held assets in the ACT, then an application for a grant of Probate is made in the Supreme Court of ACT. If the deceased did not hold assets in the ACT, then a grant of Probate will not be made in the Supreme Court of ACT.

It may be necessary for the executor to apply for a grant of Probate in each place where the deceased person held assets, or to apply for a reseal of the original grant of Probate if the deceased held assets overseas or outside the ACT.

Once Probate has been granted, the executor will provide a copy of the grant of Probate to the relevant assets holders of the deceased and request that they release the deceased’s assets.

Please note that it may not be necessary to apply for a grant of Probate in some circumstances, depending on the size and nature of the deceased’s estate.

It is important that the executor contacts the relevant assets holders of the deceased to work out their requirements for releasing the deceased’s assets.

The requirements of the deceased’s asset holders and financial institutions may vary. For example some financial institutions may not require a grant of Probate where the deceased held modest amounts of money.

Also if the deceased held property as joint tenants with another person, it is not necessary to apply for a grant of Probate. In such cases, the jointly owned property will pass to the surviving joint tenant on the death of the deceased person. A grant of Probate would not be required in that case, however other paperwork would need to be lodged with the Department of Lands.

Should you have any questions about when a grant of Probate is required in the ACT, please call one of our skilled lawyers on 1300 038 223. We are able to discuss with you the circumstances when a grant of Probate is required. Further our experienced team can assist you with obtaining a grant of Probate in the ACT.

How to Apply for Probate

The requirements for applying for a grant of Probate are set out in the Court Procedure Rules 2006.

The steps in applying for a grant of Probate are generally as follows:

• A Notice of intention to apply for probate must be published, in the approved form, in a daily newspaper which circulates in the ACT. The notice must include the name or known alias of the deceased, the deceased’s address, the date of the will or other testamentary instruments, an address for service and a statement requiring creditors to provide particulars of their claims to the estate.
• The application must be lodged in the Supreme Court of the Australian Capital Territory some time between 14 days and 3 months from the date of publication of the Notice of intention to apply.
• The application must contain the following documents:
  • An Originating Application for Probate which is a standard court form seeking a grant of Probate and stating what affidavits are relied upon;
  • Two copies of a draft Grant of Probate with a copy of the will annexed. This is the form that the grant will take once it has been made;
  • A supporting affidavit which is in the standard form setting out relevant information about the deceased, the will, the applicant and the basis for the grant;
  • The original will signed in the margin by the applicant and the person who witnesses the supporting affidavit. This must be filed separately and not stapled to any other documents;
  • An affidavit of search confirming that the applicant has conducted a search of the registry of the Supreme Court and that there are no caveats against a grant filed, no other applications filed and that no grant has already been made in respect of the estate; and
  • Any other affidavit if required.

It is important to ensure that the spelling of person’s names is correct in all application forms and that sufficient details are given regarding the estate assets. In the event that there is an error in the application or not enough information provided for a grant to be made, the Court will issue the applicant with a requisition which sets out what further information or documents are required for the grant to be made.

If you are unsure about how to make your probate application please contact Armstrong Legal as we can assist you.

Who Can Apply for a Grant of Administration?

Where an executor named in a person’s will is unwilling or unable to act or where the deceased did not leave a will, there are certain persons who may apply for letters of administration. Letters of administration act as proof that the deceased has died, they have left a will or died intestate and that the administrator is authorised to deal with the estate.

Appropriate persons who may apply for administration include:

• A beneficiary (where there is a will or where that person is entitled under the rules of intestacy);
• A partner of the deceased;
• Next of kin;
• Any other person that the Supreme Court considers appropriate.

It should be noted that a grant of letters of administration must be made to a person who is 18 years and over.

What are the Rights and Duties of an Administrator?

An administrator has the same rights, liabilities and accountability as an executor.

However, certain types of grants of letters of administration have limitations which effect what rights the administrator has. For example, some grants may allow an executor to sell the assets of the estate but not to otherwise deal with the estate.

Steps in Applying for a Grant of Probate

The steps in applying for a grant of probate are generally as follows:

• A notice of intention to apply for probate must be published, in the approved form, in a daily newspaper which circulates in the ACT.
• The application must be lodged between 14 days and 3 months from the date of publication.
• The application must contain the following:
  • An Originating Application for Probate;
  • A draft Grant of Probate with a copy of the will annexed;
  • A supporting affidavit;
  • The original will signed in the margin by the applicant and the person who witnesses the supporting affidavit;
  • An affidavit of search;
  • Any other affidavit if required.

When is a Grant of Administration Required?

When someone passes away, it may be necessary to apply for a grant of Administration. The purpose of this is to enable the administrator of the deceased’s estate to collect the deceased person’s assets and distribute them.

It may be necessary to make an application for a grant of administration, if:

• A person dies without a Will; or
• the deceased person did not name an executor; or
• An executor named in the deceased’s Will is unwilling or unable to apply for a grant of Probate.

In the third case above, an application for a grant of letters of Administration with the Will annexed is made.

Once a grant of Administration has been made, the administrator will provide the grant to the various asset holders or debtors of the deceased person. The administrator will request that these asset holders or debtors release or transfer assets to the administrator.

In some circumstances however you may not be required to apply for a grant of Letters of Administration.

The size and nature of the deceased person’s estate will determine whether it is necessary to apply for a grant of Administration.

You should contact the various asset holders of the deceased person to find out what their requirements are for releasing the assets of the deceased.

Various asset holders have difference requirements. Some asset holders may not require a grant of administration being made. For example where the deceased held modest amounts of money, a grant of administration may not be required in order to release the deceased’s assets.

The next of kin should also contact the deceased’s insurance companies and superannuation funds to determine their requirements. It is important to find out if the insurance companies and superannuation funds require a grant of administration to release the deceased’s insurance monies or superannuation.

If the deceased owned property, it is important to determine whether the property was held jointly with another person. Where the deceased held property as Joint Tenants with another person, it is not necessary to apply for a grant of administration. On the death of the deceased, the property will pass to the surviving joint tenant. In that case it will be necessary to lodge other paperwork with the Department of Lands.

However if the deceased owned property solely or as tenants in common with another person, it will be necessary to obtain a grant of Letters of Administration to transfer or sell the deceased’s property.

Please contact one of our experienced lawyers on 1300 038 223 if you have any questions about when a grant of Administration is required. We are able to guide you through the process, step by step.

Steps in Applying for a Grant of Probate

The steps in applying for a grant of probate are generally as follows:

• A notice of intention to apply for probate must be published, in the approved form, in a daily newspaper which circulates in the ACT.
• The application must be lodged between 14 days and 3 months from the date of publication.
• The application must contain the following:
  • An Originating Application for Probate;
  • A draft Grant of Probate with a copy of the will annexed;
  • A supporting affidavit;
  • The original will signed in the margin by the applicant and the person who witnesses the supporting affidavit;
  • An affidavit of search;
  • Any other affidavit if required

Steps in Applying for a Grant of Letters of Administration

The steps involved in applying for a grant of letters of administration will differ depending upon whether the deceased left a will. In all applications the required documents are lodged in the Supreme Court of the ACT.

Generally the steps are as follows:

• A notice of intention to apply for probate must be published, in the approved form, in a daily newspaper which circulates in the ACT.
• The application must be lodged between 14 days and 3 months from the date of publication.

Where the deceased left a will:

• The application must contain the following:
  • Originating application for Letters of Administration with will;
  • A draft grant of letters of administration with will, with a copy of the will annexed;
  • A supporting affidavit;
  • Original will signed in the margin by the applicant and the person who witnessed the supporting affidavit;
  • An affidavit of search; and
  • Any other affidavit required.

Where the deceased left no will:

• The application must contain the following:
  • Originating application for Letters of Administration – no will;
  • A draft grant of letters of administration – no will;
  • A supporting affidavit;
  • An affidavit of search; and
  • Any other affidavit required.

Time Frame to Apply for a Grant of Administration

Where an executor fails to prove the deceased’s will within 6 months of the deceased’s death, the Court may make orders for the administration of the estate if an appropriate application is made. Accordingly, unless there is an exceptional reason, an application for a grant should be made within 6 months of the deceased’s death.

How Long Does it Take to Obtain Probate?

The length of time to obtain a grant of probate or letters of administration will depend on a number of factors including:

• The length of time it takes to ascertain the assets and liabilities of the deceased;
• The time it takes to prepare the application documents and lodge the application;
• The time it takes for the application to be approved and the grant issued, including any requisitions that may need to be answered; and
• Whether there are any disputes in respect of the application including will validity challenges.

In a relatively simple estate with no disputes arising, a grant can usually be obtained between 1 and 3 months from the date of death.

Costs Associated With Obtaining Letters of Administration

If you are the administrator of an estate, you are entitled to have the costs associated with obtaining a grant of Letters of Administration paid from the estate.

An application for a grant of Letters of Administration can be complicated. At Armstrong Legal, our experienced lawyers are able to assist you to apply for a grant of Letters of Administration and to administer the estate of a deceased persons.

If a deceased person died without a Will, an application for a grant of Letters of Administration is made. In that case, the legislation sets out who is entitled to the deceased’s estate.

The purpose of making an application for a grant of Letters of Administration is to enable the administrator to collect the assets of the deceased person and distribute them according to the legislation.

It may also be necessary to apply for a grant of Letters of Administration if the deceased person did not name an executor. Also if an executor named in the deceased’s Will is unwilling or unable to apply for a grant of Probate, then it may be necessary to apply for a grant of Letters of Administration.

An application for Letters of Administration is lodged with the Supreme Court.

The Court has fees for lodging an application for a grant of Letters of Administration. If you would like to discuss the Court’s fees for applying for a grant of Letters of Administration, please call us on 1300 038 223. We are able to go through the Court’s fees with you.

In the Australian Capital Territory, legal costs for obtaining grants of letters of administration are charged pursuant to any Costs Agreement entered into between the lawyer and the client.

Before commencing work for any client, lawyers must disclose their legal fees. The exception to this rule is if total legal fees are likely to not exceed $750.

If you wish to discuss the costs associated with obtaining a grant of Letters of Administration, please call us on 1300 038 223. We are able to provide you with an estimate of our legal costs for obtaining a grant of Letters of Administration. If you wish to discuss this matter further, please do not hesitate to contact one of our experienced lawyers.

Revocation of a Grant

Where a Grant of Probate or Letters of Administration is made in error or improperly obtained, certain eligible people may apply to the Court to have the Grant revoked.

Situations in which an application should be made to revoke a Grant of Probate or Letters of Administration include:-

• Where a later Will is found;
• Where the deceased is later found to be alive; or
• Where Will is later found to not be a valid Will for reasons such as fraud, undue influence or lack of testamentary capacity.

A Grant of Probate or Letters of Administration may also be revoked in the event it becomes ineffectual, for example:-

• The Executor(s) lack capacity to continue to perform their duties in administering the estate;
• There has been serious misconduct or gross delay by the Executor(s); or
• There is ineffective cooperation between joint Executors.

If you need advice about revoking a Grant of Probate or Letters of Administration please contact our office for an obligation free case assessment.

The Role of the Executor

An executor is a person, named by the deceased in their will, who is authorised to deal with the deceased’s estate. Legally, the executor stands in the shoes of the deceased and may deal with their assets.

The duties of executors can be summarised as follows:

• To take custody and see to the disposal of the deceased’s body;
• To collect the assets of the estate;
• To realise the assets of the estate;
• To pay the testamentary expenses and liabilities of the estate;
• To administer the estate in accordance with the will;
• To keep proper accounts; and
• To carry on or defend against causes of action in respect of the estate (please note that the survival of contractual rights allows executors to enforce or be sued on contracts entered into by the deceased during their lifetime).

Executors have a fiduciary duty to the beneficiaries of the estate and must discharge their duties in the best interests of the beneficiaries.

Costs Associated With Obtaining Probate

The Supreme Court of the ACT charges a filing fee for a probate application that is based upon the gross value of the estate. The applicable fees are as follows (as at 1 July 2016):

Any person preparing an application for probate should check the Supreme Court website to ensure that the fees are up to date.

In addition to the filing fee there will be legal costs associated with advising and preparing the application. Those costs can be discussed with your solicitor.