A person who owns property (real or personal) in Australia needs to know what probate is.
In Australia, a probate proceeding is filed before the Supreme Court of the each state, hence, each state may have different rules of procedure governing probate. However, probate proceedings are governed by the same objectives and directed towards the same goal, to distribute the property of a deceased person according to their wishes.
Probate is the process where the will is recognized legally and declared valid by a Court which deals with probate. The declaration is necessary so that the Executor can legally perform their duties to divide and distribute according to the wishes of the Testator under the guidance of the Court.
Probate is a complicated process and purely legal. There are legal terms that you need to know and how they are applied in probate proceedings. You need to know the following terminologies:
Testator. A person who makes or has made a will voluntarily before they die is referred to as a Testator. The Probate Court will have to prove that the Testator is of sound mind when they signed the will and did so without any fraud, duress and coercion from other persons. If the person signed the will involuntarily out of fear, intimidation and coercion, the will is void and without force and effect.
Will. A will is the document through which a deceased person disposes of their property. Initially, the will is made when the person is still living and the probate is done after their death to give meaning to the Testator’s wishes. A will is sometimes referred to as the “last will and testament,” which pertains to dispositions of both real and personal property. The will enables the person to select their beneficiaries and distribute the property according to their wishes, while the Court sees to it that the interests of the beneficiaries are protected.
Estate. An Estate is a legal entity created as a result of the person’s death. The estate of a deceased person consists of all the property, whether real or personal owned by the person at the time of death. Probate deals with all processes involved to properly divide and distribute the estate of the deceased person according to the Testator’s wishes.
Beneficiary. A Beneficiary is a person or entity who receives property from the distribution of an estate. A will may have one or multiple beneficiaries.
Executor. The person appointed or named by the Testator who will administer the estate when the Testator dies. The Executor is responsible to carry out the terms of the will left by the Testator. Normally, it includes the collection, identification and inventory of all assets of the deceased person, the payment of the estate’s debts and taxes and the division and distribution of the decedent’s estate to the named beneficiaries.
Grant of Probate; Procedure
The grant of probate is a document issued by the Supreme Court recognising the authority of the Executor to deal with the estate of a deceased person. This will enable the Executor to collect, identify and make inventory of the assets of a deceased person, pay debts of the estate including taxes and then distribute the estate as directed by the will.
Usually, the named Executor in the will must apply for probate with the Probate Registry of the Supreme Court commonly referred to as Grant of Probate.
Before the Court issues the Grant of Probate, it has to prove the following:
– That the document is the last Will made by a deceased person.
– That there are no objections to the Will.
– That the Executor appointed in the Will is alive, willing and competent to undertake the responsibilities as an Executor.
What happens when a person dies and no will is executed?
Any person interested in the properties of the deceased person who died intestate (without a will) can apply for â€œGrant of Letters of Administration.â€ This is also true if the Court declares that the will or a part of the will is void or not valid, or the Executor is declared incompetent to carry out the wishes of the Testator or has died. The Court will then determine the distribution of the assets.