Probate and Estates

Probate

When a person has passed away leaving a Will and assets in the estate then generally a Grant of Probate is required to be obtained from the Supreme Court before the estate can be distributed.

A grant of probate is required when the estate comprises real estate, superannuation and bank accounts with a significant amount of money in them.

Story and Associates can assist in the obtaining of a grant of probate and all the necessary steps to be taken to enable it to be granted and provide advice in relation to the distribution of the estate to the named beneficiaries.

Letters of administration

When a person dies without leaving a Will then, to administer the estate, a representative can apply for Letters of Administration from the Supreme Court. This involves having regard to the various Acts of Parliament that relate to probate and the administration of estates . Potential beneficiaries have to be identified, the assets of the estate determined and identified and once the Letters of Administration have been obtained the estate distributed.

The law relating to probate and letters of administration

The various Acts of Parliament Relating to obtaining Probate or Letters of Administration include but are not limited to the following: –

Administration and Probate Act
Age of Majority Act
Births Deaths and Marriages Act
Choice of Law (Limitation Periods) Act 1994
Family Provision Act
Law of Property Act
Limitation Act
Natural Death Act 1998
Supreme Court Act
Trustee Act
Wills Act

Can a will be contested?

Yes. If a member of the deceased’s family believe that they had not been adequately provided for in the Will can bring an application pursuant to the Family Provision Act. Section 7 of the Act sets out who can make an application and the circumstances when they cannot.

7 Persons entitled to apply, &c.

(1) Subject to this section, each of the following persons is entitled to make application to the Court for provision out of the estate of a deceased person:

(a) a spouse or de facto partner of the deceased person;

(b) a former spouse or de facto partner of the deceased person;

(c) a child of the deceased person;

(d) a stepchild of the deceased person;

(e) a grandchild of the deceased person;

(f) a parent of the deceased person.

(2) A person, being:

(a) a former spouse or de facto partner of a deceased person; or

(b) a stepchild of a deceased person,

is not entitled to make an application to the Court for provision out of the estate of the deceased person unless the person was maintained by the deceased person immediately before his or her death.

(3) A grandchild of a deceased person is not entitled to make an application to the Court for provision out of the estate of the deceased person unless:

(a) the parent of the grandchild who was a child of the deceased person died before the deceased person died; or

(b) one or both of the parents of the grandchild was or were alive at the date of the death of the deceased person and the grandchild was not maintained by that parent or by either of those parents immediately before the death of the deceased person.

(4) A parent of a deceased person is not entitled to make an application to the Court for provision out of the estate of the deceased person unless:

(a) the parent was maintained by the deceased person immediately before his death; or

(b) the deceased person was not survived by a spouse or de facto partner or any of the children of the deceased person.

(7) For the purposes of this section, a person shall not be regarded as having been maintained by the deceased person immediately before his death unless:

(a) there was in force at that time an order of a court requiring the deceased person to pay maintenance to or for the benefit of the other person;

(b) the deceased person was, at that time, whether under an agreement in writing or otherwise, maintaining that other person or making a contribution to the maintenance of that other person, being a contribution that, in all of the circumstances, can be regarded as other than a nominal contribution; or

(c) a court would, if the deceased person were still living, have power to make an order requiring the deceased person to pay maintenance to or for the benefit of the other person.

(8) For the purposes of this section, a child of the deceased person born alive after the death of that person shall be regarded as having been born before the death of the deceased person.

Applications are made to the Supreme Court and can be very expensive. Often the estate is ordered to pay the costs of all of the litigants and the effect of that Order can substantially reduce the assets of the estate and it is therefore essential that after doing the arithmetic that all efforts are made to try and resolve the dispute without going to court.