Probate Registry (ACT)
When a testator passes away, an executor in charge of the deceased estate needs to apply for a grant of probate. Before they can do this they must first check the Probate Registry of the Supreme Court of the Australian Capital Territory to see whether a grant has already been issued for the deceased estate. The Supreme Court accepts several different types of applications that relate to grants of probate, depending on the testamentary circumstances of the deceased. This article looks at the important role of the Probate Registry in the administration of a deceased estate in the ACT.
What is Probate?
Probate is the process of legally verifying a will as valid and representative of the true wishes of the deceased. An application to the Probate Registry of the Supreme Court of the ACT is only permitted when the deceased resided in the ACT before their death or owned real property in the jurisdiction.
It is essential that every executor appointed by the testator is a party to the application to the Probate Registry for a Grant of Probate. If one or more of the executors have not affixed their signature (which could be because they have predeceased the testator, or are no longer available to act), then the application must have an attached affidavit specifying the reason for the absence of an executor’s signature, with supporting documentation.
What is the Role of the Probate Registry?
The Supreme Court has exclusive statutory authority over the administration of deceased estates in the ACT. The Probate Registry is an administrative division of the court that reviews probate applications and keeps a record of the issued grants in accordance with the Court Procedure Rules 2006.
The Probate Registry issues four different types of grants, specifically:
- Grants of Probate, which are made in response to an application by an executor to validate a will.
- Grants of Letter of Administration With Will, which are applications from someone other than an executor to validate a will.
- Grants of Letter of Administration – No Will, which are applications from a suitable person to administrate an intestate estate.
- Reseal of a Foreign Grant, which are the presentation of a foreign grant to a local court to authenticate the document in a new jurisdiction.
The personal representative (administrator or executor) must ensure that there is no competing or duplicate notice in the Probate Registry, and then publish a Notice of Intention to Apply for Probate. This notice must be published in a local newspaper not less than fourteen days and not more than three months before an application for probate is filed with the Probate Registry. The notice provides a brief opportunity for eligible claimants to challenge the validity of a will, produce an alternative will or make a Family Provision Claim under the Family Provision Act 1969. Creditors can also take the opportunity to lodge a claim for an unpaid debt against the deceased estate. The facts provided on the notice must be correct, otherwise, inaccuracies can delay the grant of application. The documents and information that are required for the notice include:
- The will and any codicils
- The date that the person passed away
- In the case of a reseal, the type of grant that was issued and the issuing authority
- The residential addresses of appointed executors.
How Should the Notice be Worded?
Procedural rules dictate the content of the notice, in that the document must identify the executor by all previously held names, and must explicitly state whether:
- The application to the Probate Registry relates to the deceased’s will;
- An appointed executor has legally renounced their responsibilities;
- A named executor has passed away;
- An alternative executor is making an application for probate;
- There is an informal will that the applicant wishes to validate.
When is a Grant of Probate not Required from the Probate Registry?
A grant of probate is required in most testamentary circumstances, but there are exceptions. If the estate is small, with limited monetary value, there may be no need for a grant. Typically, entities such as financial institutions require a grant to authorise the release of assets, but if the estate is small enough and the executor is willing to indemnify the bank against any future claims from creditors, beneficiaries or another executor, the bank can release the asset. The other instance when a grant of probate is unnecessary is when the deceased’s only significant assets are jointly held with another person, in which case the asset transfers automatically to the surviving owner.
Armstrong Legal has a specialist team that can assist you with the complicated fields of probate and succession law. We can answer any further questions you have about the Probate Registry of the ACT, and help apply for a grant of probate. Please email our office to make an appointment or call our friendly team on 1300 038 223.