Myths about Probate

In some estates, probate can be avoided. It will depend on a variety of factors, including where the deceased died; whether any assets were owned in the deceased’s name alone; the value of those assets; and whether the asset holders require probate. Assets such as real estate or shares almost always require probate. The majority of deceased estates do require probate, however we will try to avoid this for you wherever possible.

In fact probate is the act of formally proving a Will. A probate administration is necessary if a deceased left property in his or her individual name without a beneficiary designation. Also, a Will is not self-executing, which means that it must be admitted into the probate court and a personal representative needs to be appointed by the probate court. The primary purpose of probate is to permit the transfer of the deceased’s assets to the beneficiaries and to ensure that all just debts are paid.

A Last Will and Testament is a statement of the intent of the testator (the person making the Will), as to who his or her property should pass to. If a person dies intestate, meaning they did not make a Will, the property will pass according to the State law of intestacy, which provides a formula for whom should receive your estate.

This is rare, but can happen in certain circumstances. If you die without a Will, the law of the State where you die will determine who receives your estate, according to a statutory formula. Because this is a state-based area of law, the formula varies from time to time and from place to place. If you are not survived by a spouse or child, then depending upon your family circumstances, the government in some Australian states can lay claim to your estate.

A trust is a popular estate planning tool, however it is rare that all assets would be held in a trust. If any assets are titled in the name of the deceased alone, then probate may still be required. There are other ways of minimising the need for probate depending on each client’s individual needs and goals. Property can be held in Joint Tenancy or can have a beneficiary designation and would avoid probate. Probate only deals with assets that are in the deceased’s name alone. A person interesting in using other methods should consult with an experienced estate planning lawyer before making or changing their estate plan since each method of estate planning has consequences.

Unfortunately, there is no way to prevent disappointed beneficiaries from attempting to contest a Will. As you hear in the news, people can go to court and fight over just about anything. That does not mean that they will win, it just means that they can try. The grounds for contesting will are fraud, undue influence and lack of capacity. There are ways to minimise the likely success of such a challenge and a specialist lawyer experienced in estate planning can help you.

If the house is included in a Probate estate it does not necessarily take months or years to sell. The house can be listed for sale immediately after the Executor is appointed, generally in approximately 45 days. However any contract for sale must be expressed as being “subject to Probate”, as it will not be until probate is granted that anyone has the lawful authority to deal with the deceased’s assets.

It does not take years to obtain Probate in Adelaide – generally between 8-16 weeks on average. It is sometimes possible that the administration of a deceased estate could remain open for years, particularly if the beneficiaries are fighting, However, fighting and litigation between beneficiaries is far less likely at the probate stage. In other words, it is not the probate process which causes an extraordinary delay, it is disputes between persons interested in the estate.

A person who lives out of state can be appointed Executor, however, they may need to post a bond with the Court.

In a routine probate the Executor generally does not have to appear in Court. Any Court appearances can usually be made by the lawyer representing the Executor.

The lawyer’s fees are generally paid from the assets of the estate as part of the final administration of the deceased estate. There may be some expenses that the Executor advances, such as Court fees, for which the Executor may be reimbursed in the final administration of the deceased estate.

It is not until probate has been granted that anyone can rely upon any document as actually being the Last Will and Testament of the deceased. Until then, there remains a risk that another (later) Will may come to light. If assets are distributed according the wrong Will, then the unwise executor who made such distributions will be personally liable to replace those assets. The assets of a deceased estate need to be identified and valued. Sometimes an appraisal is necessary. The executor also needs to take care of paying the deceased’s debts, final expenses and any death taxes. If the executor distributes too early and is left with insufficient funds, the executor is personally liable for those obligations.

It is necessary to periodically review and update an estate plan. Revisions may become necessary if:

In addition, your desires change over time as your family or children mature. Ideally, you should review and update your plan annually, but in any event not less than every three to five years.