Probate Lawyer: Meaning And Responsibilities


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Everyone in Australia would have heard of probate lawyers, especially around the time when a person has died. But how many people know what it means?

Probate Lawyer: Meaning And Responsibilities

Probate is a term used to describe the legal processes involved in dealing with financial matters, including property and other possessions of the deceased.

Grant of probate:

This situation arises when the deceased has named executors. These individuals are the ones chosen by the dead to administer the estate.

Only the individual named in the will has the right to apply for probate and administer the estate. Having this document also minimises the personal risk of executors.

The Need for legal help:

The court has laid out strict guidelines on how one should file the application. Missing out on any small detail can lead to rejection. So to ensure speedy execution and help the beneficiaries get the assets as early as possible, it is best to have legal guidance.

When does one need it?

It depends on various factors, including the nature of assets and the circumstances. For example, probate is not needed when assets are jointly held by the tenants.

Several institutions like banks do not release the assets without the grant of probate.

If one were to proceed without this probate, it would incur more costs and deal with unnecessary piles of paperwork. The executor needs to get advice from the probate lawyers before deciding to administer the estate.

How long does it take to obtain one?

Depending on the circumstances, it may take anywhere between 6- 10 weeks from the commencement of the process.

Benefits of obtaining it:

The whole process of obtaining probate and administering the estate can feel overwhelming when one is dealing with the loss of a loved one. At the same time, having this document will make things easier.

It takes less paperwork when one has the probate, therefore making the process much quicker.

The responsibilities:

The responsibilities of an executor include

  • Collection of the assets of the deceased.
  • Paying any outstanding debts
  • Distribution of the assets to beneficiaries

With the help of the grant of probate, the executor can approach those who are currently in possession of the assets.

Debtors, including banks, are bound to transfer the money or assets at the behest of the executor or others nominated in the will.

Uncontested applications are submitted in some cases. They are called ‘grants in common form’ and are considered by a registrar. If the deceased person owned assets in multiple states or countries, it is necessary to apply for a grant of probate in each place.

One could also apply for the resealing of an original grant if the states are in Australia.
What is the timeframe to apply?

The supreme court governs this aspect for lodging probate. If one applies late (after six months), the court will require an explanation for the delay.

Who can apply?

In the will, the deceased would have usually nominated the executor(s). If it is not mentioned, then it may not be possible to apply for this probate.

In these situations, any beneficiary can apply for letters of administration- with will annexed.

It is best to seek legal help/ advice to navigate these waters of administration. Experienced hands can help expertly guide the executor and safeguard them against any impending risk. For example, if the deceased owed any debt, the executor may be responsible for paying them off. So having a little help can be meaningful support throughout the process.


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