Getting Probate – whatever that is

by | Jul 30, 2020

When a loved one passes away, there are many things that occur in a short period of time and it can all seem overwhelming. One of the phrases that people often hear at that point is “you will have to get probate” but many people don’t know what that is, why it’s needed and how to go about it. In our latest article in The District reporter, we give some insights into the process of obtaining Probate.

When a loved one passes away there are many things that occur in a short period of time and it can be very overwhelming. One of the phrases that people often hear is “you will need to get Probate” but most people don’t know what it is, why it is required and what to do next.

Where there are substantial assets in a deceased person’s sole name such as a property, more than $50,000.00 in a bank account, more than $20,000.00 in shares, water access licenses, some aged care bonds, or where there are difficulties with the superannuation – the whole of the estate assets cannot be accessed, transferred or sold without an order of the Supreme Court of NSW. Where the deceased has left a Will, this order is called ‘Probate’. Probate confirms the validity of the Will and formally appoints the Executor who was named in the will.

In order to obtain Probate you are required to provide the Court with the Will and the Death Certificate. They must also complete and file a Summons for Probate, and a document known as an ‘Affidavit of Executor’, that provides the court with a wide range of information such as – details of the executor and beneficiaries, a summary of the assets and liabilities, verification of the will, and in some certain circumstances, details about the cause of death.

Once Probate is obtained there are still many tasks for the executor to attend to in administering the estate in accordance with the terms of the Will. These can include transferring or selling property, redeeming funds in banks accounts and other investments, selling or transferring shares, paying debts and then distributing funds to the beneficiaries. They need to ensure that all of the debts of the deceased are paid, that tax returns for the deceased are completed and taxes are paid, including any capital gains tax arising from the selling of the deceased’s assets.

If any of the beneficiaries are too young to receive their inheritance yet there are additional tasks for the executor in managing the funds as trustee for them until they are of age. In all cases executors need to ensure that the assets of the deceased are properly insured and protected until they are dealt with in accordance with the will and the executor can be personally liable for a loss caused by their failure to carry out their duties.

As we always say………‘Knowledge is Power’. At Caldwell Martin Cox we have 70 years of knowledge, and our Estates Team deals with probate applications on a daily basis and can make the task of obtaining probate and dealing with the estate as smooth as possible.

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