What is Probate?
Probate means to prove. So when a person dies and they leave a Will an application for a Grant of Probate is made, which means you seek out to prove the Will. This is an application to the Supreme Court of Victoria to prove that the Will being presented is the last Will of the deceased. The executor(s) are the ones who make the application to court. Once the court makes the Grant of Probate the executor can then undertake their duties in accordance with the Will and manage the estate.
An executor is someone appointed by a Will maker to undertake their last wishes. Their roll commences as soon as the Will maker dies. It is their responsibility to find the original Will, obtain the death certificate, apply for a Grant of Probate, inform family and friends, arrange the funeral and wind up the estate. There is a lot of work to be done.
The executor must locate and contact each beneficiary in the will. Remember some beneficiaries can be located overseas. The executor also needs to assess the deceased’s assets and liabilities. Debts must be paid or otherwise dealt with. This includes paying for the funeral, attending to taxes and out of pocket expenses in managing the estate.
There are also everyday tasks which the executor must take care of. These include care and relocation of pets, attending to mail redirection, cancelling services and attending to bills. Another vital and important step is to ensure all estate assets are valued and adequately insured.
If the deceased had any business affairs the executor must also take care their interests in them. This can include any partnerships, companies or investment schemes. The executor may need to make decisions about the running of the business, wind the business or investments up, sell or manage real estate.
Tax returns may need to be prepared for times during the deceased’s lifetime as well as post death. Distribution of the estate to the beneficiaries should not occur until all tax liabilities have been assessed and paid. If the executor distributes the estate before tax is paid and there are insufficient funds to pay the tax debt, the Australian Taxation Office will look to the executor to pay.
When to distribute an estate?
Distribution of the estate should only occur after all debts have been paid, including any tax and after six months from the Grant of Probate. The reason for the wait of six months is that this is the time period in which someone can lodge an application in the Supreme Court to contest the estate and challenge the Will. In the event you distribute the estate prior to this time period and it is negotiated or ordered that distribution is to be different to what you have already done you could have major problems. If you can’t call in the previous distributions you will most likely be held personally responsible and may have to pay from your own funds.
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Probate | Letters of Administration | Estate Administration | Contesting An Estate | Defending An Estate