WILLS & ESTATES
WHAT IS PROBATE?
After death, a will facilitates dealing with the estate of the deceased person.
For a small estate, for example where the deceased person owned no real estate, shares under $25,000, bank accounts less that $50,000 or small insurance policies then production of a death certificate, the will and an indemnity in favour of the entity holding the asset may be sufficient to get in and deal with deceased personís assets.
Other estates will need a Grant of Probate which is when the Supreme Court appoints with a formal order the executor/executrix as the legal personal representative of the deceased person and gives them the right to deal with the personís assets.
The Court needs to receive:
1. the original will, details of the two witnesses provided, and an explanation of any staple, glider clip or other marks indicating attachment to another document
2. the original death certificate
3. a list of assets and liabilities of the deceased person detailed
4. proof of advertisement of intention to make an application for Probate
5. an undertaking by the executor to deal with the estate according to law
6. an affidavit evidence that the testator was of full age when making the will and did not marry subsequent to making the will
7. details of the name address and relationship of beneficiaries named in the will and their entitlements
The Executor will need to:
1. inspect the will to see if there are any funeral directions
2. check whether the will is properly executed and dated
3. has any pin or staple marks or any alterations requiring explanation
4. gather in all assets and liability details and consider whether any property needs to be protected
5. check that all necessary insurances in place and is there need for cover if a property is to be left vacant
6. obtain the Death Certificate
7. consider opening an estate bank account or decide to use a Solicitorís Trust Account
8. decide how debts are to be paid and whether assets need to be sold to facilitate this or to pay bequests
9. where assets do need to be sold be aware of Capital Gains Tax with purchase price and date of purchase in respect of those assets bought after 20 September 1985
10. if assets are to be transferred in specie be aware of Capital Gains Tax issues and for property which is not exempt from Capital Gains Tax , for example, as the residence of the beneficiary then the question of whether a valuation at the date of death needs to be considered.
11. verify the assets and liabilities and swear or affirm the application to the Supreme Court.
12. collect in assets after production of the Grant of Probate and execution of any release
13. transfer into the name of the executor assets to be sold being aware of /capital Gains Tax
14. transfer in to the name of beneficiaries assets to which they are entitled
15. advise beneficiaries of their entitlement
16. pay any debts including funeral and testamentary expense and income tax after lodgment of the income tax return
17. distribute to beneficiaries specific bequests
18. consider whether to make a claim for executors commission to the Supreme Court.
19. invest infant beneficiaries entitlement
20. ensure all assets have been dealt with
21. make a final distribution
22. prepare a statement as a final account
A solicitor is able to assist an executor/executrix to carry out these tasks and to act on his or her instructions. This makes the task of being executor a much easier one. Nicholas Dibb Solicitors can assist you. Call us on 6257 9995 for assistance with ACT or NSW probate applications.