One of an executor’s duties is to obtain probate. But what is probate and how does it work?
Probate is the process by which a Court officially recognises a deceased person’s will and the executors of that will.
Probate is required to ensure that:
- The will being relied on is actually the last valid will created by the deceased;
- Those applying for probate are the executors named in the will; and
- The executors will carry out the deceased’s wishes in line with the law.
Once the High Court grants probate, the executors are legally authorised to deal with the deceased’s property.
Is probate required?
Probate is required for an executor to deal with any asset which exceeds $15,000. If the deceased person did not have any assets in excess of $15,000, the executors do not need to apply for probate. If you are not sure whether an estate is in that category, we are happy to discuss this with you.
If the person died without a will, they are referred to as dying “intestate”. A different process, called seeking letters of administration, is required in that situation.
Have you got the right will?
- The first step is to locate the deceased’s last will. A will is often held by the deceased’s lawyer or another entity like the Public Trust.
- If you suspect that there is a will but cannot locate it, it is possible to ‘advertise’ for a will. This alerts lawyers and similar entities who will then check their records to see if they hold the will.
- There are various legal requirements for making a valid will, including that it be in writing, signed by the will-maker and signed by two or more witnesses.
- There is a process by which the Court can validate a document that does not meet the legal requirements but nevertheless sets out the deceased’s testamentary intentions.
- A probate application generally requires the original will. However, there are some exceptions to this if the original will has been lost or destroyed.
- You must also be confident that the deceased had sufficient mental capacity to make the will.
- If you think any of these situations may apply in your situation, please contact us so we can help you work through your options.
Making the application
Once you have the correct will, one or more of the executors named in that will can apply for probate.
You will need to make an affidavit (a statement sworn before a lawyer, registrar or JP) which:
Contains evidence that the will-maker has died (such as a death certificate or an affidavit from someone who went to the funeral);
Contains evidence of where the deceased was living just before they died; and
States that the will is the deceased’s last will.
You may need to file an affidavit that deals with the physical condition of the will, for example if the will has a mark, is crumpled, or has staple holes. The Court will be concerned that the document has been tampered with or previously had something else attached to it. The lawyer who looked after the will can swear an affidavit about the original condition of the will.
Other evidence may be required in some situations, such as where the will-maker had a visual impairment or a shaky signature.
Time frames
Once all the necessary documents have been filed, the High Court will review them. The Court aims to process a standard application within 6-8 weeks, but this may take longer if the Court is busy or the application is complex.
If the Court has any concerns about the application, it may ask for further information or an amended application. This will impact the time it takes to receive probate.
Receiving the grant of probate
Once you have obtained probate, you can proceed to gather in the estate’s assets and act out the will’s directions. For more information about the duties of an executor, see this article.
The grant of probate is important for starting off the timeframe for potential claimants to bring various claims against the estate, such as those under the Family Protection Act or the Property (Relationships) Act, testamentary promises claims and claims by creditors.
We have assisted many people obtain probate and to manage their responsibilities as executors and are happy to talk with you about how we could help you.
This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.
