Article of Interest on Wills & Estates

WHAT IS PROBATE?

People often associate the word Probate with tax and death duty. After the death of a loved one the suggestion by a Lawyer that it may be necessary to obtain a Grant of Probate can be an unwarranted shock. Probate does not mean death duty or tax.

Probate is the formal legal confirmation by the Court that the Will of the deceased person presented to the Court is the last Will of that person. It gives authority to the person who is named as Executor in that Will to take possession of the deceased’s property and deal with it in accordance with the terms of the Will.

It is not always necessary to obtain a Grant of Probate. If there is significant money in a financial institution, or in some other circumstances, then it will be necessary to obtain a Grant of Probate. If a person has died without making a Will; or,

has died leaving a Will but not dealing with all of the property, then it is necessary to obtain Letters of Administration in relation to the deceased’s estate. Both of these steps are often described under the one heading of ‘obtaining a Grant of Probate’.

Where does this Grant of Probate come from? An application and supporting affidavits are completed by the Lawyer acting on behalf of the estate and when completed it is filed in the Supreme Court.

The vast majority of applications are dealt with administratively. The application for Probate is granted by the Court within a relatively short period of time in the majority of cases. On some relatively rare occasions the application is opposed and then there must be appearances in the Court. This happens if there is dispute relating to the Will being presented to the Court.

When Probate is granted the applicant then has possession of a formal document known as the Grant of Probate. That document gives the Executor and Administrator authority to deal with the estate of the deceased.

It is not an expensive process and it affords protection to those who have the job of administering the estate.

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