Leaving It All Behind

Have you really turned your mind to what happens when you live happily ever after…… 

The importance of estate planning cannot be overstated. We may be leaving it all behind, but there’s work ahead for our families, friends and executors in distributing our worldly goods when we die. We read a lot about legal Wills and how important they are. But we do not often read about what happens after someone lives happily ever after from a legal aspect. Clients generally have a reasonable understanding of what amounts to a Will, however many are not aware of what Probate is, or when it is necessary. If you have a Will your nominated executors are responsible for ensuring that your wishes are carried out. In the vast majority of cases, this means dealing with your assets. The most common assets in a typical estate are bank accounts, shares, motor vehicles, real estate, superannuation, life insurance policies and personal possessions. Your executor’s job is to have these various assets sold, or transferred into the name or names of the beneficiaries listed in your will. 

Now comes the hard part ……

The various Financial Institutions, bodies or government departments that control the title to those assets are required to be contacted and request that they transfer the assets either into the name of the executor, if the asset is to be sold, or directly into the name of the beneficiaries. This is when engaging a Solicitor will assist the Executors of an Estate ensure all their responsibilities, obligations and legal responsibilities are met.In some cases, the controlling bodies will oblige after you send them a copy of the Will and death certificate. However in the majority of cases, the controlling bodies will ask for a Grant of Probate from the Supreme Court in your State before they will transfer the assets. 

The type of asset and whose name or names are on the title of the asset will determine if a Grant of Probate is required. The reason they ask for this document is to protect themselves against being sued by someone who may have a financial claim of some kind against the estate. It is a ‘due diligence’ process designed to ensure that your estate is properly administered. 

So what exactly is required to obtain a Grant of Probate? The executors named in your will are required to make a formal application to the Supreme Court in your State for a Grant of Probate. The application consists of a number of completed forms and affidavits (sworn statements), your Will, the death certificate, and a copy of the death notice placed in the newspaper. As each State has different requirements, the format, content and number of forms for the application vary. Engaging a qualified Solicitor in this area is recommended as they will be familiar with what documents are required to be prepared and ensure all relevant information required is submitted with such application.The Probate Registry with the Supreme Court is the area that would process your application and they are extremely pedantic about the accuracy and content of the forms. A misspelled name is sufficient to cause the rejection of an application and Requisitions then being raised. 

Once the Grant is issued, your executors will have the authority to deal with your estate. The executor has the power to step into the shoes of the deceased and act accordingly to ensure the Will is complied with. Once Probate is granted the Executor has a duty to uphold the Will and will be legally responsible and personally liable for what occurs during this process, hence why engaging a Solicitor is highly recommended to leave no stone unturned. When someone has passed away, the last thing you need is more stress and grief of dealing with probate. At MBBF our solicitors can advise you on all aspects of estate administration and probate in NSW. We will be able to work with Executors and beneficiaries of the Will throughout the probate process to ensure the assets are identified, any claims on the estate are established, taxes are paid and that the assets are correctly distributed among the beneficiaries.