Many of us know what a Will is. We know that it is the document that tells people who the deceased chose as their executors, trustees and the beneficiaries of their estate. But how does an executor use the Will to transfer the deceased assets to the beneficiaries?
If the deceased held assets in their sole name, including bank accounts and real estate, an executor will need to apply for a Grant of Probate from the Supreme Court of the state or Territory in which the deceased held the majority of their assets. A Grant of Probate is a Court Order that provides for an executor to call in, deal with and distribute the assets of the deceased estate in accordance with the terms of the deceased’s Will.
Without a Grant of Probate an executor is unable to deal with the deceased’s real property (including the sale of real estate), distribute funds held in the deceased’s bank accounts or sell / transfer any shares held by the deceased.
To apply for a Grant of Probate, the executor must first publish a Notice of Intention to Apply for Probate. If you are applying for a Grant of Probate in the ACT, this notice is usually published in the Canberra Times. An executor can then apply for a Grant of Probate 2 weeks after the notice is published, and no later than three months after it was published.
There are a number of documents that need to be prepared on behalf of the executor when applying for a Grant of Probate, including the Grant, an Application and an Affidavit. It is important that these documents are prepared correctly. If they are not, it is possible that the Court will requisition the documents and ask you to amend them.
When is a Grant of Probate not required?
There are some circumstances where a Grant of Probate may not be required. These include:
- If the deceased jointly owned real estate, bank accounts or other real property with another person. If this is the case, the right of survivorship will apply, and the assets can be transferred to the surviving person once the death certificate has issued;
- If the deceased held relatively small amounts of money with a financial institution. All financial institutions have different rules, however many will allow the executor to call in and distribute funds of $50,000 or less without a grant of probate; and
- If the majority of the deceased’s assets were held in superannuation. Superannuation is not automatically an estate asset and therefore a grant of probate is often not required in order for it to be dealt with.
Most people will not have held the role of executor before. If you have been appointed as an executor you might be feeling overwhelmed and unsure where to start.
Robinson + McGuinness Family Law is able to assist you in applying for a Grant of Probate and subsequently administering the estate. Robinson + McGuinness Family Law offers fixed fees to prepare and file an Application for Probate.
If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.
By Peta Sutton