Grants of Probate
Unless an estate is very small, when a person dies and they have left a Will, there are a number of formal procedures that must be followed before the estate can be distributed to the beneficiaries under the Will. In most cases, the executor will need to apply for a Grant of Probate from the Probate Division of the Supreme Court. Probate is the authority given by the Court to the executor to deal with the assets and liabilities of the estate. The Grant of Probate is usually a formality but the Court cannot issue a Grant of Probate until 7 days after the death of the Will maker (also known as the testator).
To obtain a Grant of Probate, the executor will need to file a number of documents with the Court. It can take some time to gather all the necessary information to complete the paperwork. If the documents are in order, the Grant of Probate can take between 3 - 18 weeks to be issued.
After the Grant of Probate and before the distribution
Once the Grant of Probate has issued, the executors named in the Grant have very serious obligations in terms of collecting the assets, paying the liabilities, paying outstanding tax and conducting the estate in a proper way. When they have completed their duties, they can distribute the assets to the beneficiaries named in the Will, in accordance with the Will provisions.
Preparing the estate for distribution
Only after the necessary work has been completed on the administration of the estate can the estate be distributed in accordance with the Will provisions.
Letters of Administration
If a person dies and they do not have a valid Will, then it is said that they died 'intestate'.
In these cases, the next of kin will need to apply to the Court for Letters of Administration. In these cases the Court makes an order for a Grant of Letters of Administration to the person or people who are the next of kin, under a complex set of rules.
The Letters of Administration has the same effect as a Grant of Probate. The Letters of Administration granted by the Court allows the estate to be administered by those next of kin named in the Letters of Administration.
Next of kin who wish to apply for Letters of Administration must go through similar steps as those required for obtaining a Grant of Probate. The process of applying for Letters of Administration is more expensive than applying for a Grant of Probate.
Order for distribution
If you die without having a valid Will, your assets will be distributed in a certain order, as set out in the Intestacy Act 2010. The statutory order for distribution is as follows:
- if the deceased person leaves a spouse and no children, the whole estate goes to the spouse;
- if the deceased person leaves a spouse and children and the children are also children of the spouse, the spouse is entitled to the whole of the intestate estate;
- if the deceased leaves a spouse and any children who are not children of the spouse, the spouse is entitled to the deceased's personal effects, a statutory legacy of $350,000 (adjusted for CPI using a formula) and one-half of the remainder (if any) of the intestate estate;
- if the deceased leaves more than one spouse, but no children, the spouses are entitled to the whole of the estate in shares as determined by the Intestacy Act 2010;
- if the deceased leaves more than one spouse and children who are children of one or more of the surviving spouses, the surviving spouses are entitled to the whole of the intestate estate in shares determined by the Intestacy Act 2010;
- if the deceased leaves more than one spouse and any children who are not children of the surviving spouse, the spouses are entitled to share the intestate's personal effects, each spouse is entitled to a statutory legacy of $350,000 (adjusted for CPI using a formula) and the spouses are entitled to share one-half of the remainder of the intestate estate (if any);
- if the deceased leaves children only, the estate goes to the children equally (or grandchildren if the child or children are deceased);
- if the deceased has no spouse or children, the estate goes to the deceased's living parent or parents;
- if the deceased has no spouse, children or parents, the estate goes to other relatives in the following order: first, brothers and sisters, or children of a deceased brother or sister; second, grandparent/s; third, uncles and aunts;
- if the deceased has no living relatives who is entitled to the intestate estate, the estate goes to the State Government; however, the Government may pay some money to dependants if it is established that the deceased had any.
For the purposes of the Intestacy Act 2010, a spouse of an intestate means a person:
- who was married to the intestate immediately before the intestate's death;
- who was a party to a registered personal relationship, within the meaning of the Relationships Act 2003, with the intestate; or
- who, immediately before the intestate's death, was a party to a significant relationship, within the meaning of the Relationships Act 2003, with the intestate that:
- had been in existence for a continuous period of at least 2 years; or
- had resulted in the birth of a child.
For the purposes of distribution on an intestacy, an adopted child is to be regarded as a child of the adoptive parent or parents and:
- the child's family relationships are to be determined accordingly; and
- family relationships that exist as biological fact, and are not consistent with the relationship created by adoption, are to be ignored.
Intestate indigenous estates
The personal representative of an Indigenous intestate, or a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which the Indigenous intestate belonged may apply to the Court for an order for distribution under the Intestacy Act 2010. An application to the Court must be filed with a scheme for the distribution of the estate in accordance with the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belongs. An application for distribution in this way must be made within 12 months after administration commences, or a longer period allowed by the Court, but no application may be made after the intestate estate has been fully distributed.
In formulating an order, a Court must have regard to the scheme for distribution submitted by the applicant and the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged. An order may require a person to whom property was distributed before the date of the application to return the property to the personal representative for distribution in accordance with the terms of the order. However, no distribution that has been, or is to be used, for the maintenance, education or advancement in life of a person who was totally or partially dependant on the intestate immediately before the intestate's death can be disturbed.
Duties of an executor or administrator
Basically the duty of an executor or administrator is to collect the assets of the deceased and distribute them to the beneficiaries. How this is done depends on the Will and the nature of the estate. A beneficiary does not own the gifted property until the executor distributes the gifted property from the estate. Before distribution, the executor is the owner of the property. An executor has 12 months from the death to distribute an estate, although the Court can allow the executor a longer period of time.
If an executor acts improperly or is not administering the estate carefully and in accordance with the law, the beneficiaries may complain to the Supreme Court. This is the only right a beneficiary has before the distribution of the estate. An executor who obtains an estate by fraud or who retains an estate is liable to account for the assets of the estate.