A Valid Wills names a person (or multiple people) as the “executor of the estate”. The role of the executor is to administer the estate in accordance with the Will, and otherwise look after the estate. This includes paying the debts, collecting and disposing of the assets (including selling them as needed) and distributing the assets of the estate.
Generally, a special order of the Supreme Court known as a Grant of Probate is required in order to be able to complete the duties. The grant provides legal power and legal protection to the executor to deal with the assets of the estate. By way of example, without a grant of probate banks will generally not release money held in the deceased’s name to another person. A deceased’s person’s property cannot be sold without a grant.
If you are named as the executor under a Will you have an obligation to administer the estate, including getting the grant of probate as needed. Alternatively, if you do not want to do this you can renounce as executor which essentially means that you are unwilling to do the job.
While executors are not normally entitled to payment for the time they spend doing the work, they are entitled to be reimbursed for all costs associated with the administration of the estate, including legal costs.
Segelov Taylor Lawyers assists executors in obtaining grants of probate.
What is the probate process?
Probate is a court order made by the Supreme Court of
NSW which confirms the validity of the will. Once probate is granted, the
executor has the power to distribute the estate as described in the will.
Not all estates need to go to the probate process. You may not need to obtain a grant of probate if the assets do not exceed a certain value, and do not include real property owned solely by the deceased..
A grant of probate is a document issued by the Court
that confirms the last Will of the deceased, and names a person or persons (the
executors) who are entitled under law to deal with the assets of the estate and
distribute the estate.
What if there is no Will (or the Will is not valid)?
If there is no Will, or there is an informal Will, an application can be made to the Supreme Court of NSW for “Letters of Administration”. This is usually done by the the closest relative to the deceased.
Letters of Administration may also be used where an executor(s) named in the will is unable or unwilling to act.
What are letters of administration?
Letters of Administrations are essentially the same as a grant of probate.
They are a legal document issued by the Court, which enables the executor or administrator to manage and distribute the deceased’s assets. There must be assets held in NSW for the letters of administration to be granted.
It is important to carefully search for and locate any will that may have been written by the deceased. Any document indicating the deceased’s intentions for the distribution of their estate should be searched for ahead of the application process. This is to ensure the fair distribution of the deceased’s assets.
Generally, an application for a grant of probate and letters of administration should normally be made within 6 months of death, and the estate distributed within a year.
Segelov Taylor can assist executors and others with the administrations of estates.