When a loved one passes away it can be a stressful time for the family. This is made easier when the deceased has left a Will which names their executors and clearly states their wishes. This can include directions as to burial or cremation and specific wishes for their funeral.

The role of an executor is to administer the deceased’s estate.

The first step is to get a list of the deceased’s assets and liabilities. If these exceed a certain amount (currently $14,000) then an application for Probate is required.

What is “Probate”?

Probate is a court order that formally appoints the executors as the administrators of the deceased’s estate. It confirms that the will is valid and is the last will of the deceased.

How do I apply for Probate?

Your lawyer will assist you with this application which is filed in the High Court. You need to have the original will and be able to confirm the death of the deceased (eg. have the death certificate or state that you attended the funeral). You also need to state that you knew the deceased and where they lived. There is a filing fee of $200.

How long does this process take?

Once the High Court has received the application it usually takes 6 to 8 weeks for the order to be made but may take longer depending on the court’s workload.

What next?

Once the Order for Probate is obtained the executors can legally deal with the estate’s property including closing bank accounts, paying bills and selling property. The executors must distribute the balance of the estate according to the deceased’s will. This is usually done after 6 months from the date of Probate. The executors must be able to account for the assets and liabilities and may have to file a statement in court.

Sometimes there are claims made against the estate which need to be dealt with (such as by a child who is left out of the will) and it is essential for the executors to have legal advice about these types of matters.

What if there is no Will?

If the deceased does not have a Will there is an alternative process and someone such as a spouse or a child can apply to court for Letters of Administration. This is a more complicated process and we strongly advise everyone to have an up to date will.