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Understanding the Basics of Probate


When a loved one passes away, their Will, assuming they had one, becomes a crucial document in determining how their assets are to be distributed. However, before any distribution can occur, the will may need to go through a legal process known as Probate. But what exactly is Probate, and when is it necessary?


What is Probate?

Probate is a Supreme Court process that validates a deceased person’s will and confirms the executor’s authority to distribute the estate according to it's terms.


The Probate Process

The process begins when the executor files various documents, including an Affidavit and the original Will, and makes an application with the court. The court then reviews these documents and if satisfied issues a “Grant" of Probate, an official recognition of the will’s validity and the executor’s role. This grant is essential for the executor to access the deceased’s assets, settle debts, and manage the distribution of the estate.


When is Probate Required?

Probate is generally necessary when the deceased has left behind significant assets that are solely in their name. For instance, if the deceased owned property or had significant bank accounts that did not have a joint owner, Probate would likely be required to transfer ownership or access the funds.


Is Probate Always Necessary?

There are instances where Probate may not be necessary. If the deceased’s assets were owned as joint tenants , those assets would automatically pass to the surviving owner without the need for Probate. Similarly, assets with a smaller value, can often be transferred without going through Probate. Further it should be noted that proceeds of life insurance and superannuation generally do not form part of the estate which may mean that these asset holders may agree to release the proceeds without the requirement for Probate.


How long does Probate take ?

This is dependent on the complexity of the estate. Factors affecting the time it will take to finalise an estate includes how long it takes to sell or realise assets, any taxation issues, any trusts set up by the Will and if anyone contests the Will. The minimum time to finalise an estate is six months from the date of death however generally speaking an Executor should expect an estate to take around 12 months to finalise, with simpler estates usually being finalised somewhere between the 6-12 month mark.


Conclusion

Probate is a fundamental step in administering a deceased person’s estate. It ensures that the will is valid, debts are settled, and beneficiaries receive their inheritance as intended. While it can be a complex and time-consuming process, it’s an essential part of fulfilling the final wishes of a loved one.


Probate is generally simplest where there is

  1. A valid Will, and

  2. The original of this Will has been located, and

  3. There is an Executor named in the Will who is willing and able to act.


Any other circumstance can lead to delays and complications. which can easily be avoided if the deceased had an updated and current estate plan.


At Inele Law we are happy to assist Executors to receive a Grant of Probate as efficiently as possible. We are happy to discuss the Probate process with you and keep you informed every step of the way.


We also believe that effective estate planning prior to death can minimise unnecessary delays in the process of finalising an estate and can assist with this also.


Please reach out if you need more detailed information or have specific questions.

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