When someone passes away leaving assets such as property, bank accounts and shares, it is often necessary to make an application to the Supreme Court for a Grant of Probate or a Grant of Letters of Administration.
What does this mean and why is it needed?
A Grant of Probate is a Court order that confirms the validity of the deceased’s Will and authorises the Executor appointed in the Will, to administer and distribute the deceased’s assets according to the terms of the Will. The application is made to the Court by the Executor, and by granting probate, the Court is essentially giving the Executor legal authority to call in the deceased’s assets, pay any debts and distribute what is left to the beneficiaries per the terms of the Will.
What happens if there is no Will?
Where there is no valid Will (meaning the deceased person died intestate), an application is made to the Court for a Grant of Letters of Administration. In these cases, the Court appoints an Administrator (whose role is very similar to that of an Executor) to manage the deceased person’s estate, including identifying assets, paying debts, and distributing the estate according to the intestacy laws. The intestacy laws set out who benefits from the deceased’s estate and in what proportions.
Applications to the Court for a Grant of Probate or Letters of Administration can be an overwhelming process at a difficult time and are required to be made within a particular timeframe of the person’s death unless there is a reasonable explanation for a delay.
Does a Court order help manage assets?
There are several reasons why banks, share registries, nursing homes and other institutions will not release or transfer a deceased’s assets without a Grant of Probate or Letters of Administration. These centre around risk mitigation, liability concerns and third parties. Without a Court order, there is the risk that assets could be distributed to the wrong person potentially exposing the institution to liability. The process also ensures that any third party who may have a claim against the estate (for example, a creditor) is notified and prevents unauthorised distribution of assets.
An Executor/Administrator is responsible for locating assets, paying debts, ensuring tax obligations have been met and distributing the remaining property according to the Will or laws of intestacy. If the Executor/Administrator does not do this, they can be held personally liable for the debts owing.
In essence, the Court order serves as a safeguard to all involved ensuring that the deceased person’s wishes are respected, debts are settled, and assets are distributed correctly.
Is there a circumstance when Probate isn't needed?
In some cases, a Grant of Probate or Letters of Administration is not required.
For example, if all assets were jointly owned with another person, then the assets pass in accordance with the right of survivorship, meaning, they automatically become the property of the surviving joint owner and they do not form part of the deceased's estate. However, there are still some administrative steps that one would need a lawyer to assist with.
How we can help
Contact our expert Wills and Estates Planning Team who can guide you through the entire process. We can advise as to whether a Grant is required, help you apply to the Court for a Grant, and help to identify and collect assets, to ensure a smooth administration process.
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