A grant of probate is a legal document proving a will and authorises the executor to manage the estate of the deceased. The primary role of the executor is to determine the property of the deceased, pay out any debts and distribute the assets in accordance with the will.
Executors may also be responsible for making funeral arrangements, disposing of remains and applying for a certified copy of the death certificate. The executor will be the person dealing with banks and real estate agents in order to finalise the estate in accordance with a will. If you or a loved one has been named as an executor, our solicitors can assist with the process of probate and administration.
Letters of Administration (Intestacy)
It is becoming more common these days that a person dies without having made a will. This is known as dying intestate.
Another manner of intestacy may also be that the person has a valid will but the will does not dispose (distribute) all of the deceased’s estate. This could result from for example where all of the beneficiaries die before the testator or say where an executor has been appointed but the deceased did not give sufficient directions in their will.
In the case of intestacy, Letters of Administration (a legal order from the court) ensures that the person handling the administration of the estate is protected as they have the force of the law behind them when dealing with the deceased estate property. A grant is not always required and often banks and financial institutions will deal with an administrator provided the amount is less than $ 50,000 and evidence of death and entitlement is provided.
However if the deceased person has left real property (real estate) then a grant will be necessary.
Essentially the administrator is responsible for much of the same actions as an executor named in a will. These duties include; making funeral arrangements, paying out debts, legal fees, and taxation liabilities and distribution of estate assets in accordance with a will or if no will in accordance with intestacy legislation.
If a loved one has died without a will and you don’t know what to do or if you have been named as an executor and don’t know what to do contact our solicitors at Save U Legal for budget conscious legal advice and representation.
Should you or a loved one be left out of a will or has received a bequest which you believe is inadequate our solicitors can assist in making a family provision claim by challenging the will.
There is specific legislation requiring that family members are adequately provided for in wills. The Succession Act 2006 (NSW) contains chapter 3, and defines a Family Provision Order as being; an order in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person.
Eligible people include, current partners (married or de-facto), children (of any age), ex partners, and current dependant grandchildren or persons living with the deceased at the time of death.
Section 60 contains what the court will consider in making an order for family provision and includes such things as;
- The relationship between the deceased and the applicant
- Any obligations or responsibilities owed by the deceased person to the applicant or other beneficiaries
- The financial position of the estate and the applicant
- The personal living circumstances of the applicant.
- Age of the applican
- The character and conduct of the applicant before and after the death of the deceased person.
Call us today if you have any questions or enquiries about family provision claims or to oppose someone else’s family provision claim on a loved one’s estate.