What is probate?

Published 26 May 2015

Author: David Cossalter

The term probate is one that you are likely to have heard in the past. Simply put, it refers to the process of proving and registering a will with the Supreme Court of the deceased's home state or territory.

This is an essential step for making sure their wishes can be met and all assets distributed in line with whatever has been laid out in the will.

The role of the executor

Probate also involves ensuring someone is tasked with dealing with the estate. In the majority of cases, the deceased is likely to have named executors in their will. They will be the people responsible for making sure all assets are allocated and that any debts are repaid.

Once the executor has been made known, they will then have to approach the Supreme Court for a grant of probate. Unless the person has been named in the will, it is not possible for them to obtain this highly important document.

However, in some situations, you might be able to make an application for letters of administration. This can occur when you're not an executor named in the deceased's will, and when there is no will to refer to.

Services offered by the Probate Office

The grant or probate is issued by the Probate Office. This confirms that the author of the will has passed away and that their will is authentic. It is also a means of ensuring the executor is who they say they are.

Although the Probate Office can offer information on certain practices and procedures, it cannot provide guidance on the specifics of how to administer an estate.

Probate can be a particularly difficult area to navigate, especially with the potential for inheritance disputes and other issues to arise. It is therefore a good idea to seek sound legal advice in case there are any aspects of procedure that you are unsure of.

Potential problems with probate

There are usually two major issues that are likely to arise when applying for probate.

The first is the validity of the will. The document referred to by the executor must be the most up to date version of the will - and it needs to be legally sound. This is where the potential for disputes arises, especially if provisions made for family members are not in line with what they were expecting.

As a result, some people may choose to contest the will, which can lead to all sort of legal complications. They may seek the expertise of a no win, no fee lawyer to take on their case.

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