When a person passes away, leaving behind a Will, their close relatives must follow a certain procedure, be it for the distribution of assets or performing the last rites. Legally speaking, the first thing to do after someone’s death is to prove the existence of a valid Will. This process of establishing the validity of a Will is known as Probate, which begins with a probate application. This is something you must do at the earliest.
More precisely, “Probate” is a Supreme Court Order that confirms a Will as the deceased’s final legitimate testament. As part of this, the court also delegates authority to an executor specified in the Will to gather and administer the estate in line with the stipulations of the Will.
One may easily get lost in this, so let’s start with the basics of proving a Will and some crucial aspects involved in this procedure.
How to Get Probate?
The proving of a Will is nothing but stating:
● That the individual has passed away.
● That their Will is their final testament.
● The assets they owned and debts they owed at the time of their death.
● That the executor specified in the Will is still alive, willing, and competent to handle the estate’s administration.
To prove the above, one must go through the Probate process. So, let’s see the essential things involved in it.
1. Parties of Probate
The three most important people in Probate are next of kin, executors of Will, and beneficiaries. Either of them can become the estate administrator, but the Will decides who would assume the charge.
The three possible scenarios are:
● In the case of the existence of a Will, whoever is specified in the Will as executor becomes eligible to administer the deceased’s estate. Here, the executor acquired the Grant of Probate through a Probate application.
● If there is a Will, but no executor is present to petition for the Grant of Probate, Will’s principal beneficiary(s) must apply for Letters of Administration (with the Will Annexed).
● And, in the case of intestate (one who died without a Will), next of kin applies for Letters of administration. Upon approval, they become the administrator.
2. Probate application
Before the estate can be distributed, the executor must prove their legitimacy as Will’s administrators. And the Grant of Probate gives them that power. To get probate, the executor specified in the Will must petition the Supreme Court’s Probate Office. If the Probate application is allowed, it proves Will’s validity and the executor’s authority to administer the estate. Note that the executor must apply to the Court for a Grant of Probate within six months of the deceased’s demise. If applied later six months, the executor must provide the Court with an explanation.
However, if the specified executor is unable or unwilling to perform their obligations, the Supreme Court may appoint an administrator to manage the estate.
3. Funeral arrangements
Executors are bound to organise the deceased’s funeral, burial, or cremation as promptly as possible following their death. Funeral arrangements are usually carried out in accordance with the deceased’s instructions in the Will. It is important to review the Will for any specific instructions and fulfil the deceased’s desires. And all the funeral expenses are settled from the estate before the beneficiaries get their share of the inheritance. In addition, the executor is not obligated to receive consent from the deceased’s relatives before making funeral preparations.
4. Administration of the estate
After the Court has granted probate, the executors can handle the estate’s assets and liabilities. To formally register, transfer, or sell the decedent’s assets, they require copies of the following:
● Death certificate
● Any other identification forms requested
However, assets held in joint ownership with another party do not belong to the estate. So, the executor must identify these jointly owned assets of the deceased and disclose them to the court at the time of probate application. Additionally, superannuation is not included in the estate. A superannuation fund is a form of Trust controlled by Trust deed rules. With a self-managed superannuation fund, members may allow the transfer of fund benefits to a deceased member’s estate executor. For this, they must submit death benefit nominations to the fund’s trustee.
5. Debt Repayment
Initially, executors must provide a list of all the decedent’s outstanding obligations while filing for a Grant of Probate. Once the estate’s assets and claims have been called in, executors should pay off all the deceased’s outstanding debts.
The repayment method is based on whether the estate is solvent or insolvent. Solvent means when there are enough assets to repay all the obligations, and insolvent means when there aren’t enough.
Also, there are some costs that must be paid before any debts, regardless of whether the estate is solvent or bankrupt.
● Funeral costs
● Costs associated with the testamentary (probate) process
● Administrative (including legal) costs
Then, the executor can divide the inheritance among the beneficiaries as per the deceased’s wishes.
This is how you prove that a Will is valid, and as can be seen, it involves many crucial details. What starts with a Probate application goes through much more complex work. If you feel you need further help with the whole probate process, seek Wills and Probate lawyer’s services. You’ll be confident and stress-free having a professional by your side during such a difficult time. They make the probate application and the following procedure effortless.