Probate in TAS


If a person dies and owns assets in Tasmania, then it will be necessary for the Executor named in the Deceased’s Will to obtain a Grant of Probate from the Supreme Court of Tasmania so that they can administer the estate.

A Grant of Probate is a document issued by the Supreme Court of Tasmania certifying the Will of a deceased person is valid and legal. It is essentially confirmation from the Court that the Will annexed to the Probate document is the last valid Will of the Deceased and that the Executor named in the Will is the person authorised to administer the estate of the Deceased.

The process of applying for a Grant of Probate can sometimes be a very complicated and daunting process. If you have any queries or concerns about the process of applying for a Grant of Probate then you should contact Armstrong Legal. It is important to note that your legal costs to obtain advice regarding the Probate Application process is considered by the Courts to be an estate expense and are therefore payable from estate funds.

Who is Entitled to Apply for a Grant of Probate?

The person named as the Executor(s) named in a Will is the only person entitled to apply for a Grant of Probate.

If the Executor named in the Will has predeceased the Deceased and there is a substitute Executor named in the Will then the substitute Executor will be entitled to apply for the Grant of Probate.

If a substitute Executor is applying for a Grant of Probate then the wording contained in the Affidavit in support of the application for Probate will need to be amended to disclose to the Court that the first named Executor has predeceased the Deceased.

What Happens if the Executor Has Died and there are No Substitute Executors?

If the Executor of a Will has predeceased the Deceased and there are no substitute Executors named in the Will or the Executor / substitute Executor does not wish to act, then the Court cannot issue a Grant of Probate. Instead, someone will need to apply for a Grant of Letters of Administration with the Will annexed.

What If I am an Executor and I am Unwilling to ACT?

If you are named as the Executor of a Will, then there is no obligation on you to act as the Executor if you do not want to.

If you do not wish to act as Executor, then you will need to “renounce” your right to a Grant of Probate. In order to renounce your position as Executor you must complete a Renunciation of Probate Form which you can obtain from the Supreme Court of Tasmania website.

If you are unsure as to whether you are entitled to apply for a Grant of Probate or require assistance in renouncing your right to a Grant of Probate then you should contact Armstrong Legal on 1300 038 223 to discuss your options.

When is a Grant of Probate Required?

Once a person dies, the assets of the Deceased are frozen which means that it is not possible to access funds or deal with real property (exceptions apply) without a Grant of Probate. As an example, a bank or financial institution will refuse to transfer you the proceeds of an account held by the Deceased unless they are provided with a copy of a Grant of Probate.

Once Probate has been granted, an Executor is then authorised to access and deal with the Deceased’s assets. The Executor is also protected and indemnified when dealing with the Deceased’s assets provided they are dealing with the assets in a genuine and proper manner. This protection comes from section 28 of the Administration and Probate ACT 1935 (Tas).

If you are an Executor of a Will and you do not obtain a Grant of Probate, then you do not receive the protection provided by section 28 of the ACT. This means that you may have to pay for any loss suffered by the estate whilst you are acting as Executor. In most cases, we advise our clients to obtain a Grant of Proabte to protect them out of an abundance of caution. If you have any queries about whether you need to obtain a Grant of Probate then you should contact Armstrong Legal on 1300 038 223 to discuss your options.

How to Apply for Probate

The requirements for applying for a grant of Probate in Tasmania are set out in the Probate Rules (2017).

In order to apply for Probate you will need to:

  • Publish a Notice of Intention to Apply for a Grant of Probate on the Supreme Court website.
  • Once 14 days has lapsed after you publish your Notice, you will need to file with the Probate Registry the following:
    • An Application for a Grant of Probate. There is a prescribed form on the Supreme Court website;
    • An Affidavit in Support of the Application which must address specific matters. You will need to exhibit to the Affidavit; the original death certificate of the Deceased, Inventory of Assets and Liabilities of the Estate, a copy of the Notice published and the original Will;
    • An unstapled photocopy of the original Will (doube-sided) on A4 size paper;
    • The requisite court filing fee. This amount will vary depending upon the value of the Deceased’s gross estate.

There may be other documents you are required to include with your application depending on the circumstances. For example, if an Executor does not wish to apply for probate, then you will need to also file a signed renunciation form from that Executor.

Probate applications must be precise and accurate. If there are any errors or the Court requires further information because your application is incomplete, then the Court will issue you with a requisition which must be satisfied before a Grant of Probate can be made.

If you are uncertain about how to apply for probate, please contact Armstrong Legal and we will assist you.

What are the Rights and Duties of an Executor / Administrator?

The rights and duties of an Executor / Administrator in Tasmania are outlined in the Administration & Probate ACT 1935 (Tas).

The main rights and duties of an Executor / Administrator are:-

  • To arrange for the disposal of the Deceased’s body;
  • Inform the relevant financial institutions of the Deceased’s death and provide them with the information and documentation required.
  • Collect the assets of the Deceased’s estate.
  • Transfer the proceeds of the Deceased’s assets into an estate bank account or in a solicitor’s Trust Account.
  • Pay the Deceased’s debts and testamentary expenses. If the Deceased’s Will contains instructions regarding the payment of expenses and assets charged with payment of debts, then the Executor must follow these instructions.
  • To arrange for the preparation and lodging of tax returns for the Deceased up to the date of death and for the estate.
  • To maintain proper accounts of all estate income & expenses and estate assets & liabilities.
  • To invest estate assets pending the finalisation of the administration of the estate.
  • To distribute the estate in accordance with the Deceased’s Will after the expiry of the three-month period after the grant of probate.

Once the estate had been administered, the Executor’s role changes to that of a Trustee. The administration ends when the process of paying estate debts and liabilities is complete and the estate assets are ready for distribution.

The general powers of a Trustee are often stated in the Will and are also outlined in Part 3 of the Trustee ACT 1898 (Tas). The powers of a Trustee include:-

  • The power to sell assets;
  • The power to postpone the sale of assets;
  • The power to retain investments;
  • Powers in relation to the conduct of business;
  • The power to retain or purchase real estate;
  • The power to appropriate;
  • The power to advance funds to beneficiaries for their maintenance and advancement;
  • The power to determine what is capital and income of the estate;
  • The power to employ agents;
  • The power to settle accounts;
  • The power to purchase trust property;
  • The power to appoint a new trustee(s);
  • The power to insure trust assets.

If you have any concerns about your rights and duties as an Executor or Trustee then you should contact Armstrong Legal to discuss your options. Similarly, if you have concerns that an Executor or Trustee is not complying with their obligations and duties then you should also contact us to discuss your options to hold the Executor or Trustee to account.

Who Can Apply for a Grant of Letters of Administration?

If the Deceased Died with a Valid Will

A Grant of Letters of Administration will be required in circumstances where:-

  • The Executor named in the Will predeceased the Deceased;
  • The Executor named in the Will renounces their position as Executor;
  • There is no substitute Executor named in the Will.

If a Grant of Letters of Administration is required, then the Court must be satisfied that the person making the Application has an “interest” in the estate or is entitled to represent a person with an interest in the estate (i.e. pursuant to a Power of Attorney of an incapacitated beneficiary). The preferred applicant will be the person with the greatest interest in the estate (i.e. a principal residuary beneficiary named in the Will).

If the Deceased Died Without a Will

If the Deceased died without leaving a valid Will (i.e. intestate) then the persons entitled to apply for a Grant of Letters of Administration are outlined in Rule 19 of the Probate Rules 2017. The order of people entitled to apply is as follows:-

  • A spouse of the Deceased;
  • Children of the Deceased;
  • The issue (children) of any child of the Deceased, provided that:-
    • The child of the Deceased predeceased the Deceased; and
    • The issue are entitled to a share of the Deceased’s estate.
  • The parents of the Deceased;
  • The brothers and sisters of the Deceased, regardless of whether they share one or both parents;
  • The issue of any brother or sister of the Deceased, provided that:-
    • The brother or sister predeceased the Deceased; and
    • The issue are entitled to a share of the Deceased’s estate.
  • The grandparents of the Deceased;
  • The aunts and uncles of the Deceased;
  • The issue of any aunt or uncle of the deceased, provided that:-
    • The aunt or uncle predeceased the Deceased; and
    • The issue are entitled to a share of the Deceased’s estate.
  • The State of Tasmania;
  • A creditor of the Deceased.

When Can Probate be Granted?

In Tasmania, there are three basic requirements before you can apply for a Grant of Probate, namely:-

  • There must be property in the state of Tasmania;
  • There must be a valid Will;
  • The Will maker must have died.

Sometimes there are disputes as to whether an asset is actually located in Tasmania, the general rules for determining the location of assets are as follows:-

  • The real estate is situated where it is actually located;
  • Company shares are deemed to be located in the same state that the company share registry is located;
  • Banks / financial institutions are located at the branch where the account is held;
  • Chattels are deemed to be situated wherever they are physically located as at the date of death.

If an original record or death or death certificate is not available for a Deceased person, then a person applying for a Grant of Probate may apply to a judge for leave to swear as to the death of a person under Rule 88 of the Probate Rules 2017 (Tas).

If there are assets held in more than one jurisdiction, it may be necessary to have the grant of probate “resealed” in the other jurisdiction. Resealing occurs when a Court recognises a grant of probate obtained in a different state of Australia.

If there are assets held in more than one jurisdiction, and it is not possible to “reseal” probate in the other jurisdiction, then it may be necessary to apply for an additional grant of probate in the other jurisdiction as well.

When is a Grant of Letters of Administration Required?

If the Deceased Died with a Valid Will

A Grant of Letters of Administration will be required in circumstances where:-

  • The Executor named in the Will predeceased the Deceased;
  • The Executor named in the Will renounces their position as Executor;
  • There is no substitute Executor named in the Will.

If a Grant of Letters of Administration is required, then the Court must be satisfied that the person making the Application has an “interest” in the estate or is entitled to represent a person with an interest in the estate (i.e. pursuant to a Power of Attorney of an incapacitated beneficiary). The preferred applicant will be the person with the greatest interest in the estate (i.e. a principal residuary beneficiary named in the Will).

If the Deceased Died Without a Will

If the Deceased died without leaving a valid Will (i.e. intestate) then the persons entitled to apply for a Grant of Letters of Administration are outlined in Rule 19 of the Probate Rules 2017. The order of people entitled to apply is as follows:-

  • A spouse of the Deceased;
  • Children of the Deceased;
  • The issue (children) of any child of the Deceased, provided that:-
    • The child of the Deceased predeceased the Deceased; and
    • The issue are entitled to a share of the Deceased’s estate.
  • The parents of the Deceased;
  • The brothers and sisters of the Deceased, regardless of whether they share one or both parents;
  • The issue of any brother or sister of the Deceased, provided that:-
    • The brother or sister predeceased the Deceased; and
    • The issue are entitled to a share of the Deceased’s estate.
  • The grandparents of the Deceased;
  • The aunts and uncles of the Deceased;
  • The issue of any aunt or uncle of the deceased, provided that:-
    • The aunt or uncle predeceased the Deceased; and
    • The issue are entitled to a share of the Deceased’s estate.
  • The State of Tasmania;
  • A creditor of the Deceased.

Steps in Applying for a Grant of Probate

In order to obtain a Grant of Probate, the Executor must complete four documents, namely:-

  • A Notice of Intention to apply for a Grant (the “Notice”);
  • Application for a Grant (the “Application”);
  • Affidavit in Support of an Application for Probate (the “Affidavit in Support”);
  • Inventory of Assets & Liabilities (to be annexed to the Affidavit in Support) (the “Inventory”).

You will also need the original Will and an A4 photocopy of the Will together with the original record of death or death certificate.

The Notice

You must publish a Notice of Intention to Apply for a Grant on the website of the Supreme Court of Tasmania at least 14 days before filing the Application.

The Application

The Application must annex an unstapled photocopy of the original Will on A4 paper and annex an Affidavit in support of the application.

The Affidavit In Support

The Affidavit in Support is the document which justifies to the Court why the Executor is entitled to a Grant of Probate.

The Affidavit in Support must annex the following documents:-

  • The original death certificate;
  • The Notice published on the Supreme Court of Tasmania Website;
  • The Inventory.

The Inventory

The Inventory sets out in detail the assets and liabilities of the estate and includes assets outside the state of Tasmania (if they exist). The Inventory must describe the different class / group of assets using headings. The headings of the classes of assets may include:-

  • Real estate – you must include the address, title reference and estimated value;
  • Money in banks / financial institutions – you must include the bank, account number and the balance as at the date of death;
  • Motor vehicles – you must include the make, model and registration;
  • Life insurance policies;
  • Superannuation – As a general rule, superannuation death benefits do not form part of a Deceased’s estate.
  • Shares in companies – you must list the name of the company, the number of shares held and the value of the shareholding as at the date of death;
  • Household assets and personal items such as furniture and jewellery – you do not need to provide values for each item.

If the value of real property is not known to the Executor, then it is permissible for the Executor to provide an estimate of the market value of the property. However, the Executor must take reasonable steps to ensure the estimate is as accurate as possible.

If you require assistance in applying for a grant of Probate, please call Armstrong Legal on 1300 038 223.

Steps in Applying for a Grant of Letters of Administration

In order to obtain a Grant of Letters of Administration, the applicant must complete four documents, namely:-

  • A Notice of Intention to apply for a Grant (the “Notice”);
  • Application for a Grant (the “Application”);
  • Affidavit in Support of an Application for Probate (the “Affidavit in Support”);
  • Inventory of Assets & Liabilities (to be annexed to the Affidavit in Support) (the “Inventory”).

You will also need the original record of death or death certificate of the Deceased.

If you are applying for a Grant of Letters of Administration with the Will annexed and the Executor named in the Will has predeceased the Deceased, then you will also need the original record of death or death certificate of the named Executor in the Will.

The Notice

You must publish a Notice of Intention to Apply for a Grant on the website of the Supreme Court of Tasmania at least 14 days before filing the Application.

The Application

If you are applying for Letters of Administration with the Will annexed, then the Application must annex an unstapled photocopy of the original Will on A4 paper and annex an Affidavit in support of the application.

The Affidavit in Support

The Affidavit in Support is the document which justifies to the Court why the applicant is entitled to a Grant of Letters of Administration.

The Affidavit in Support must annex the following documents:-

  • The original death certificate;
  • The Notice published on the Supreme Court of Tasmania Website;
  • The Inventory.

Where the applicant is applying for a Grant of Letters of Administration on Intestacy then the applicant must demonstrate to the satisfaction of the Court that a Will of the Deceased cannot be located. This means the applicant will need to also set out the enquiries they have made to ascertain whether the Deceased left a Will. These enquiries include:-

  • Searches of trustee companies;
  • Searches amongst the Deceased’s personal papers and records;
  • Searches of the Deceased’s personal solicitors (if known);
  • Causing a notice to be placed in the Tasmanian Law Society Newsletter requesting information about the whereabouts of the Deceased’s Will;
  • Identifying and listing the entitlements of the people entitled to share in the Deceased’s estate.

The Inventory

The Inventory sets out in detail the assets and liabilities of the estate and includes assets outside the state of Tasmania (if the exist). The Inventory must describe the different class / group of assets through the use of headings. The headings of the classes of assets may include:-

  • Real estate – you must include the address, title reference and estimated value;
  • Money in banks / financial institutions – you must include the bank, account number and the balance as at the date of death;
  • Motor vehicles – you must include the make, model and registration;
  • Life insurance policies;
  • Superannuation – As a general rule, superannuation death benefits do not form part of an estate;
  • Shares in companies – you must list the name of the company, the number of shares held and the value of the shareholding as at the date of death;
  • Household assets and personal items such as furniture and jewellery – you do not need to provide values for each item.

If the value of real property is not known to the applicant, then it is permissible for the applicant to provide an estimate of the market value of the property. However, the applicant must take reasonable steps to ensure the estimate is as accurate as possible.

Time Frame to Apply for a Grant of Letters of Administration

An application for a Grant of Letters of Administration should be made as soon as practicably possible after the death certificate has been issued. Typically, it takes approximately 1 to 3 weeks for the death certificate to be released to the next of kin.

If there are issues surrounding the cause of death of the Deceased person, then the death certificate may take much longer to be released. This is often the case where an autopsy is required. If there is an investigation into the cause of the Deceased’s death, you may be able to apply for an interim death certificate which will allow the applicant to proceed with the application for a Grant of Letters of Administration.

If you are applying for a Grant of Letters of Administration with the Will annexed and the person in possession of the Will is refusing to provide you with the original Will, then you can obtain an Order from the Court for the production of the Will.

Rule 92 of the Probate Rules 2017 (Tas) allows the Registrar to issue a subpoena require a Will to be sent or delivered to the Registry.

  • The Testator (i.e. the Will maker) has died;
  • The person making the application has standing to apply (i.e. they have an interest in the estate as a beneficiary);
  • The person you are claiming against has possession or control of the Will. Typically, the court prefers correspondence from the person with custody of the Will acknowledging that he / she has the original Will.
  • The applicant has made a prior request for the production of the Will. This means the applicant must write to the person known to be in possession of the Will and request production of the Will and outline the reasons for the request.

If a person with possession of a Will is refusing to provide you with the original or is refusing to apply for a Grant of Letters of Administration with the Will annexed, then the value of the estate could be negatively impacted. If you have concerns regarding the delay in apply for a Grant of Letters of Administration then you should contact Armstrong Legal on 1300 038 223 to discuss what options may be available to you.

Time Frame to Apply for a Grant of Probate

There is not set time frame for an Executor to obtain a Grant of Probate. Sometimes the Probate Application process may be complicated due to difficulties in ascertaining the size of the estate or locating the whereabouts of the Deceased’s Will. However, if an Executor refuses to take out a Grant of Probate or is unreasonably delaying the application for a Grant of Probate, then a person with an interest in the estate can obtain an Order from the Court for the production of the Will.

Rule 92 of the Probate Rules 2017 (Tas) allows the Registrar to issue a subpoena require a Will to be sent or delivered to the Registry.

The Registrar of the Supreme Court of Tasmania will only Order the production of a Will once the Registrar is satisfied that:-

  • The Testator (i.e. the Will maker) has died;
  • The person making the application has standing to apply (i.e. they have an interest in the estate as a beneficiary);
  • The Executor has possession or control of the Will. Typically, the court prefers correspondence from the person with custody of the Will acknowledging that he / she has the original Will.
  • The applicant has made a prior request for the production of the Will. This means the applicant must write to the person known to be in possession of the Will and request production of the Will and outline the reasons for the request.

If an Executor is delaying in obtaining a Grant of Probate, then the value of the estate could be negatively impacted. If you have concerns regarding the delay of an Executor in applying for a Grant of Probate, then you should contact Armstrong Legal to discuss what options may be available to you.

How Long does it take to Obtain Probate?

The timing of how long the Court will take to issue a Probate, will depend upon how quickly the Court processes the application once it has been lodged, the complexity of the application, whether there are any errors in the application or whether any caveats have been lodged on the estate.

If there are no issues with the application and no caveats filed on the estate, then generally a grant is likely to be issued within a month of filing an application. The Probate Registry will be able to provide you with an expected timeframe for your particular application and when teh Court is likely to issue the Grant.

However, a Court will not issue a Grant of Probate within 14 days after the death of the deceased. Therefore, you will need to ensure you wait at least 14 days after the date of death to file the application for probate.

If an application for a grant is made, for the first time, more than 2 years after the date of the deceased’s death, then the applicant for the grant must include, in the affidavit supporting the application for the grant, the following matters:

  • an inventory of assets and liabilities of the deceased’s estate at the time of the deceased’s death;
  • an inventory of assets and liabilities of the deceased’s estate at the date of the making of the application;
  • the reasons why an application in respect of the deceased has not been made previously;
  • the reasons why the application is now being made.

The Court is likely to take longer to assess this type of application.

If an application is more complex, for example, where the original Will cannot be located and only the copy Will is located, it will take the Court longer to assess this type of application.

If you would like more information regarding how long it takes to obtain probate, then please contact Armstrong Legal for assistance.

Costs Associated with Obtaining Probate / Letters of Administration

In Tasmania, the filing fees to obtain a Grant of Probate / Letters of Administration depend on the size of the estate and are as follows:-

Fees to obtain a Grant of Probate / Letters of Administration
Value of the Estate Filing Fees
Less than $50,000 $442.40
Between $50000 and $250,000 $788.48
Between $250,000 and $500,000 $865.84
Between $500,000 and $1,000,000: $1,090.20
Between $1,000,000 and $2,000,000: $1,380.92
Between $2,000 and $5,000,000: $1,568.94
Greater than $5,000,000 $1,884.94

In addition to the filing fee, there are separate legal costs to prepare the Probate Application and these costs will depend on the size of the estate and the nature of work required to prepare the Affidavit in Support.

If the estate is complex, then there may be substantial work required in liaising with accountants and financial advisors in order to ascertain the value of the assets and liabilities. As an example, there are often disputes as to whether an asset actually belongs to the Deceased or whether it has been transferred out of their name prior to their death. If this is the case, then your legal costs to prepare the Probate Application will be higher.

Conversely, if the estate is simple and uncomplicated then the legal costs to prepare the Probate Application will be significantly less.

Revocation of a Grant

In Tasmania, the Supreme Court has the power to revoke a Grant of probate.

However, revoking a Grant of probate is a very serious matter and the Supreme Court will only do so unless:-

  • You have standing to revoke the Grant of probate;
  • The estate has not been fully administered; and
  • You are able to demonstrate you have sufficient grounds in revoking the Grant of probate.

Do I Have Standing to Revoke a Grant of Probate?

Generally, the Supreme Court will only entertain a revocation application if the person making the application has “standing”.

This is because a revocation application must be accompanied by an application for a new Grant of probate.

Therefore, any person with standing to obtain a new Grant of probate will have standing to file a revocation application. Generally, this would include:-

  • A beneficiary or executor of a prior Will (if a Grant of probate of a later Will is being revoked);
  • A beneficiary or executor of a later Will (if a Grant of probate of a prior is being revoked);
  • A beneficiary under the rules of intestacy.

Are there any Time Limits to Bring a Revocation Application?

There is no statutory time limit to file a revocation application. However, a revocation application may be unsuccessful if you have delayed in filing in the application and you do not have a reasonable excuse for the delay.

Also, the Supreme Court may refuse to make revocation orders if the estate in question has already been full administered.

What are the Grounds for a Revocation Application?

The caselaw in this area of law demonstrates that the grounds for revoking a Grant of probate are as follows:-

  • Where the Grant of probate has been obtained in false pretences or on an incorrect basis. Some examples are:
    • Where the Deceased person is not dead yet and is living at the date of the Grant of probate.
    • Where the Executor is deceased as at the date of the Grant of probate.
    • Where the Grant of probate was obtained by fraud i.e. a fraudulent Will or probate application.
    • Where the Grant of probate was made in respect of in invalid Will (i.e. the Will maker did not have capacity to make their Will).
    • Where the Executor was a minor (under 18 years old) at the time of the Grant of probate;
    • Where a later Will is found;
  • Where events that occur post the date of a Grant of probate, require a revocation application. Some examples are:-
    • The Executor wishes to be relieved of the obligation to administer the estate;
    • The Executor becomes incapable of administering the estate or is unable to be located;
    • The Executor not behaving properly and is putting the ongoing administration in jeopardy.

 

 

WHERE TO NEXT?

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