A Guide to Understanding Probate

The task of distributing a testator’s estate as outlined in their will can be daunting for those involved. Circumstances of this nature, however, follow a clear process that can help to relieve some of the pressure.

Before an estate can be administered to beneficiaries, the executor of a will must apply for a grant of probate. In essence, probate confirms the validity of a will and bestows authority to the executor to act out the testator’s wishes. In Victoria, the Supreme Court is responsible for issuing probate.

The process of probate certifies that a will is legally effective, recognising that the affairs it outlines are viable and can start being wound up.

As soon as realistically possible, any person who is in possession of the deceased’s will is expected to present it to the probate court. This will ensure the correct legal processes are put into action promptly, and that the estate can start being administrated in a reasonable amount of time.

A detrimental component of completing the probate process is, of course, proving that the testator has in fact passed away. This can be verified by submitting their death certificate when filing for probate, and is essential in validating the need to act on their will.

The Role of an Executor During Probate

Typically, a deceased individual will appoint the executor of their estate in their will. The person who’s chosen is under no obligation to accept this role and can, of course, reject such responsibility. In the event this happens, the court will simply assign another candidate to act as the estate’s personal representative.

Once successfully appointed, they will receive formal documentation allowing for them to act on behalf of the estate. This is administered during probate and is often referred to as a letter of authority or administration.

The confirmed executor or personal representative of the estate is then obliged to act out the wishes of the testator. This includes, but is not always limited to, dividing estate assets between beneficiaries as directed by the deceased in their will.

In some cases, the executor may be required to settle any outstanding expenses, debts or taxes of the deceased such as funeral costs. The executor of a will can also be permitted to sell certain assets if instructed to do so by the testator.

When is Probate Necessary?

The beneficiaries of a testator’s will aren’t automatically entitled to the assets assigned to them. Probate is a process that more often than not must be completed before the deceased individual’s wishes can be administered.

Probate is essential in cases where a testator has left a will, because in order to distribute their assets accordingly their wishes must be legally validated. The executor needs to be given the right to administer assets, and any ambiguities need to have their true meaning defined so that they can be accurately acted on.

In fact, there are very few plausible instances where probate wouldn’t be necessary in Victoria.

However, in circumstances where the assets of a deceased individual’s estate are scarce, hold little value and don’t contain real estate, probate will often be redundant. This is also the case in situations where all of the testators’ assets are jointly owned.

If the deceased didn’t make a will then probate can’t be applied for, as there’s not any documentation available to be legally verified. In such instances the property of the testator is known as their residuary estate and a personal representative, as appointed by the court, is responsible for administrating assets.

What Issues May Arise When Applying For Probate?

When applying to have a will validated, there are a number of key issues that may arise.

For instance, an individual who feels the deceased’s will is unfair or that they have been inadequately provided for may choose to contest its validity. A will may also be challenged if the will-maker is believed to have been coerced or under undue influence when their will was being written.

In either case, there is the potential for the will in question to be deemed invalid and the distribution of assets to be altered accordingly.

Want to Find Out More?

If you need more information on challenging or contesting a will that is in the process of probate or has already been approved, please do not hesitate to contact Hentys today. Our experienced estate lawyers can assist in determining the merit of your case, and will provide you with the expert assistance required to achieve the outcome you deserve.