As an executor, do you need to apply for a grant of probate?
20 Sep 2017
- Wills & Estates
When a loved one passes away, the administration of their estate can be a long and complicated process.
When a person dies testate, they die leaving a valid will and having appointed a person as executor of their estate. That person has a number of obligations and responsibilities to fulfil including, in some cases, applying to the Supreme Court for a Grant of Probate. The Wills & Estates team at Snedden Hall & Gallop, explains when it might be necessary to apply for a Grant of Probate. Please see our related blog post on letters of administration.
Probate: what is it?
Probate is the process of proving and registering the last will and testament of a deceased person through the Supreme Court. The process confirms the identity of the executor and ensures the will complies with the statutory requirements of a valid will.
Once the will is confirmed, the Court issues a grant of probate which authorises the executor to administer and distribute the estate in accordance with the will and the law.
How do I know if a grant of probate is necessary?
Before an application for a grant of probate is filed in the Supreme Court, the executor must establish what assets the estate consists of and the individual value of those assets.
When the individual assets reach a certain amount, it is likely that the relevant institutions (such as banks) will require a grant of probate to be obtained before any dealings with that particular asset can occur. The threshold amount varies from institution to institution and in most instances, you will be notified if a grant is required.
If the deceased owned real property solely in their name, a grant of probate will be required in order to deal with that asset.
What is the process of obtaining a grant?
Before you can file an application for a grant of probate in the Supreme Court, the following steps must be taken by the executor:
- The original will must be located and read;
- The executor must advertise their intention to apply for probate;
- All estate assets and liabilities must be determined; and
- All relevant court documents must be filed with the Supreme Court. The application for a grant of probate is usually supported by an affidavit of the executor which outlines the relevant steps taken to comply with their obligations.
After the notice of intention to apply is published and the prescribed time has lapsed, the executor is able to file the application in the Supreme Court.
How long do I have to apply for a grant of probate?
If you are named as an executor in a will and you have determined that a grant is required, your application for a grant of probate must be brought before the Court within six months of the deceased’s death, otherwise, you will need to explain your delay for filing the application.
Experienced probate lawyers in the ACT
The law surrounding estates can be complicated. It is essential that you seek legal advice before making an application. Snedden Hall & Gallop’s knowledgeable Wills & Estates team can assist you. We have vast experience in all aspects of estates from planning to probate and litigation. Please see our website for further information about Wills & Estates.
In some circumstances, letters of administration are required instead of a grant of probate. Please see our related blog post on letters of administration.