What is Probate?
Probate is a complex area of law and the associated rules change very quickly. At Harbourside Legal our Probate Lawyers remain up to date regarding all developments and changes in Probate. You can have peace of mind that you are receiving the most accurate and up-to-date information, advice and assistance in relation to the estate.
Probate is recognition of the Will’s validity and permission from the Supreme Court for the Executors named in the Will of the deceased to carry out their duties in relation to the Estate. You will likely need a grant of Probate to deal with the assets of an estate, such as selling property and obtaining bank funds.
What if there is no Will?
This situation is referred to as intestacy and the law determines how assets will be shared out after debts have been paid. If you are the next of kin you can apply for Letters of Administration, which will give you authority to finalise the estate.
What is an Executor
Have you been chosen by a family member or friend to be the Executor of their Will? This means that you have been given responsibility to manage their estate according to the terms they’ve outlined in their Will and to protect their assets under the various laws and rules that govern estate administration in Australia.
An executor’s duties may include responsibilities such as:
- Organising the funeral, notices for the paper, flowers
- Locating the Will
- Obtaining a copy of the Death Certificate
- Making sure any property and assets are safe and secure
- Determining the value of assets
- Applying for Probate
- Paying insurance policies, debts and taxes
- Collecting moniesbelonging to the deceased from financial institutions and insurance companies
- Collecting debts owed to the deceased
- Lodging tax returns for the deceased and for the estate
- Selling properties and assets
- Reporting to beneficiaries
- Distributing the proceeds of the estate to beneficiaries
- Setting up trusts
Being an Executor can be overwhelming, particularly when you are grieving, but rest assured we can guide you through.
Is an Executor Liable for any debts?
Generally all costs associated with the application and distribution are paid by the estate so you should not be out of pocket however, if the Estate is not administered int he correct way then there is a risk that you could be held personally liable for any mistakes. Our team of experienced Probate Lawyers can guide you through the process to ensure that you do not expose yourself to any liability.
Do Executors get paid?
It depends. If you are a beneficiary of the will it is presumed that your benefit will cover your costs. If you’re not a beneficiary then you can apply to the Supreme Court for commission.
What if I’m not up to the job?
Just because you have been named an Executor doesn’t mean you have to accept the responsibility. If there is another Executor named, they can take on the whole of the job, or if you are the sole executor you can apply to the court to appoint someone else. You cannot change your mind later though – giving up the responsibility is final.
Do I need a Lawyer?
Estates vary in complexity and Executor’s duties can be complicated, so it may be a good idea to get advice from a lawyer. The cost of legal advice is usually covered by the estate, not the Executors. Our team of Probate Lawyers can help you throughout the whole process to ensure that the estate as administered legally and efficiently.