If you’ve never had to deal with Probate, Letters of Administration and deceased estates, the whole process can feel extremely complex and confusing, on top of the grief you may be experiencing from the loss of a loved one. Think of this article as Probate for Dummies - a simple guide to teach you the basics of estate administration.
What is the first thing to do?
Once you have organised the collection of your loved one and the funeral services, there isn’t anything you can do until you receive the death certificate. It can take two to four weeks for this to arrive, and once it does, the executor or administrator of the deceased’s estate can start estate administration.
Executor: The person or organisation responsible to manage all assets and carry out the directions a person makes in their Will when they pass away. You need to appoint an executor when writing your Will.
Administrator: If the person who made the Will did not appoint an executor, usually the court needs to appoint someone to administer the estate, usually the closest surviving next of kin of the deceased, such as a spouse. A person appointed by the court is called an administrator.
The executor or administrator will need to apply for a Grant of Probate or Letters of Administration, which are collectively referred to as Grants of Representation.
Read more about the duties of the executor of a Will here.
What is a Grant of Representation?
A Grant of Representation is a legal document issued by the Court, which enables the executor or administrator to finalise the deceased’s affairs by sorting through and distributing their assets.
- Collecting or gathering all of the deceased's assets.
- Paying any outstanding debts.
- Selling or transferring property.
- Distributing the assets to the next of kin or people named in the Will - which are known as beneficiaries.
The grant is proof that the person named in the grant (the executor or administrator) is entitled to collect and distribute the estate of the deceased.
There are two main types of grants.
- Probate: A Grant of Probate is issued to the executor named in the last valid Will left by the deceased.
- Letters of Administration: Letters of Administration are issued when the deceased person has not written a Will, or the Will they have made is not valid. In most instances the grant is made to the administrator, which as discussed earlier is usually the closest surviving next of kin of the deceased (e.g.a spouse or a child of the deceased).
Whenever someone is talking about “arranging probate” or “applying for probate”, that means applying for a Grant of Representation, whether that is a Grant of Probate or Letters of Administration.
Why do you need a Grant of Representation?
A Grant of Representation gives the executor or administrator the legal right to administer the estate of a person who has died.
A Grant of Representation is needed before a deceased estate can be distributed to any beneficiaries. Once it has been granted, the court issues a document confirming that the Will is valid and also confirms the appointment of the executor/administrator. Essentially, assets cannot be distributed before a Grant of Representation is granted.
A Grant of Representation also allows the assets to be transferred to the name of the executor or administrator so they can manage them easily.
In the meantime, the deceased person’s bank accounts will be frozen until the Grant of Representation is obtained. In cases where Probate is not required, the bank may simply request the Executor to provide certified copies of certain documents, such as the Will (if it exists) and the death certificate, as well as signing an indemnity before releasing the deceased’s funds.
How does arranging Probate with Bare Law work?
Within Bare, we have an affiliate law firm, Bare Law, who work to fast-tracks and simplify the process of Probate for you, at a fraction of the cost of traditional lawyers. Like Bare, the digital approach of Bare Law allows us to stay affordable and pass the savings onto you.
The process is straightforward:
- Organise a free consultation with our lawyers: Our lawyers work with you to explain the probate process, get to know your situation and discuss requirements and costs. This consultation will be conducted via video call or over the phone.
- We will prepare and lodge the documents: We take care of the paperwork, ensuring it is all in order, correct and ready for submission to the appropriate court.
- We will file the documents and you are granted Probate: You will then have authority to deal with the relevant banks and other institutions.
Do I need to use a lawyer? When should I seek legal advice?
There are a few key reasons to speak to a lawyer, but the general rule of thumb is to seek legal advice if you are ever unsure or need any questions answered.
You should seek advice if:
- The deceased person didn’t leave a Will, or the Will they wrote isn’t valid.
- There is a dispute between multiple nominated executors.
- The assets are large or complicated.
- There is not enough money to pay off any debts.
- As executor or administrator, you are uncertain of how to proceed and administer the estate.
For a free no-obligation chat with the Bare Law team, give them a call on 1800 959 371.