Probate

Probate

What is it?

When a person dies someone has to look after the assets of that person and pay the deceased's debts. In other words, although the person is no longer here, his or her affairs must be finalised.

The person to finalise the affairs is either appointed by the Will or if there is not a Will an application may be made to the Supreme Court of the ACT for such an appointment – this appointment is by way of the Court granting to the Executor a “Grant of Probate”, to allow the Executor to administer the deceased’s estate.

Where a person is appointed by a Will, that person is called an “Executor". Where a Will does not exist, an "administrator" is appointed.

"Probate" is a Court order declaring a deceased's Will valid and that the person named in the Will as the Executor has the power to finalise the deceased's affairs.

To determine whether a Grant is needed, the person appointed Executor in the Will must contact the organisations with which the deceased held assets to determine the organisation’s requirements for transfer or release of those assets to the Executor or the beneficiaries.

Anyone appointed an Executor must in the first place determine the deceased's assets and debts. Once that is known you can then determine how the assets can be transferred to the beneficiaries.

If an application must be made to the Supreme Court for a Grant of Probate:

  • you must advertise the application in a prescribed form in a local newspaper
  • you must lodge a formal application with the Court with an affidavit containing:
    • proof that you have advertised the application by providing a copy of the advertisement;
    • an inventory of the deceased's assets and liabilities as an individual and held jointly with anyone;
    • details about the Will;
    • details about the deceased;
    • a death certificate;
    • the original Will;
    • statement that you have searched the Registry records to indicate a previous Grant has not been made; and
    • two copies of the Grant of Probate on which the Court will place its seal.

You must also pay a fee to the ACT Supreme Court for the Probate Application.This fee is dependent upon the gross value of the estate.

Once Probate is Granted

After you have collected the Grant from the Supreme Court Registry, you send it to the various organisations where the deceased's assets are held – eg: the deceased’s bank; share registries or superannuation fund. Any money received will then be paid to you, in the name of the Deceased’s estate, to distribute in accordance with the Will.

Likewise, any land in the sole name of the deceased can be transferred to the beneficiary by taking the Probate document to the Land Titles Office and making an application for that transfer.

Any debts of the estate must of course be paid before the estate is distributed. The Executor has a legal obligation to make those payments.

An Executor must always keep his / her own money and affairs separate from those of the deceased estate. This is absolutely essential where the Executor is not the sole beneficiary.

And do not forget to put in that final Estate tax return!

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