After a person dies someone has to look after the assets of that person and pay the
person’s debt. Although the person is no longer here, his or her affairs must be finalised
and the person to finalise the affairs is appointed by the Will of the deceased.
Where a person is appointed by a Will, that person is called “an executor”.
An executor is chosen by the person making the will to carry out their wishes in
managing their estate, and is responsible for the administration and distribution of
assets to beneficiaries according to those wishes. An executor may be a friend, a
relative, or a professional.
Most people are unaware of the complexities and time involved in administering an
estate and may find the role to be a burden.
What are the legal steps that are taken after someone dies?
The executor of a Will may need to make an application to the Supreme Court for
Probate. This is usually done with the help of a lawyer. Probate is a Court order
declaring a deceased’s Will valid and that the person named in the Will as the executor
can finalise the deceased’s affairs.
It is not always necessary to get a Grant of Probate. The need for a Grant by the Courts
has been relaxed over the years, although an application for a Grant is still necessary in
many cases.
When do I need to apply for Probate?
The requirement to apply for a Grant of Probate will depend upon the nature of the
assets of the estate. 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 requirements of those organisations for transfer of those assets to the
executor or the beneficiaries. This is best done through your lawyer.
Where a dispute does or is likely to arise over the estate, a person appointed as
executor would be wise to apply for a Grant of Probate. Where a person does not have
the right to deal with an estate, the person can become personally liable to the
beneficiaries.
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How to apply for Probate
Anyone appointed an executor under a Will must firstly determine the deceased’s
assets and debts. Once that is known the executor can then determine how the assets
can be transferred to the beneficiaries.
In making an application to the Supreme Court, the executor must:
advertise the application
lodge a formal application with the Court with an affidavit (a sworn statement)
containing:
o proof of the advertisement
o details about the Will
o certain details about the deceased person; and
o the original Will
do a search of the Registry records to indicate a previous Grant has not been
made; and
provide a certified copy of the death certificate.
Paying any debts and distributing the assets
Any debts of the estate must be paid before the estate is distributed. Then the executor
distributes the estate in accordance with the will.
After the Grant of Probate from the Supreme Court Registry has been made, evidence
of the Grant must be sent to the various places where the deceased’s assets were held
(ie. the deceased’s banks or share registries). Those institutions then transfer the
assets as directed by the executor or the executor’s lawyer.
Any land in the sole name of the deceased can be transferred to the executor or the
beneficiary by lodging the Grant of Probate with the Land Titles Office, together with an
application to transfer the land.
Where the deceased owned land in more than one jurisdiction, it may be necessary to
apply to the Supreme Court of each jurisdiction for a reseal of the Grant of Probate,
before the land can be transferred under the Will.
If you need to know any more about administering an estate please call us on 02 9191
9293 or email mail@rnlegal.org