Estate Administration – What is Probate?

by Morrison Kent - Andrew Stewart

One of the most common phrases you may hear concerning administering a person’s estate when they die is “obtaining a grant of probate”. However, what is probate and why is it important?

When a person makes a Will, they appoint someone (or in some cases more than one person) to be their Executor and Trustee (for this article, we will refer to this person as the Executor).

The Executor is responsible for paying any debts owed by the deceased and then distributing the deceased’s estate (that is, all assets the deceased owns) as set out in his or her last Will.

Where the deceased owns land or has assets that are worth more than $15,000.00, the Executor must apply to the High Court for a “grant of probate” before dealing with any of the deceased assets. The purpose of this is to prove that the Executor has the right to administer the deceased’s estate.

The application for a grant of probate is accompanied by the original Will and an affidavit (a written statement confirmed by oath or affirmation) from the Executor, which records that:

  1. The Executor knew the deceased and knew that he or she has died (with proof as to how they know he or she has died);

  2. The Executor believes the Will accompanying the application is the deceased’s last Will;

  3. The Executor is the person appointed in the deceased’s Will as Executor;

  4. The marriage or civil union of the Executor and the deceased has not been dissolved (if applicable); and

  5. The Executor will carry out the instructions the deceased has set out in his or her last Will.

The Court Registrar will check that the Will and the evidence provided in the affidavit are satisfactory, and if they are, will make a grant of probate.

The probate document includes a copy of the deceased’s last Will (the Court retains the original) and confirms that the Court has approved the deceased’s last Will and the Executor has the right to administer the deceased’s estate.

A certified copy of the grant of probate can then be provided to anyone that needs proof the Executor has the right to deal with the deceased’s assets. The probate may be required to close bank accounts, sell shares, withdraw investments, transfer ownership of land or claim on any life insurance policies; as well as to pay any debts the deceased may owe.

FOR MORE INFORMATION

If you have any further questions about probate or would like to learn more about administering a will, please feel free to contact  Andrew Stewarton (04) 495 8921 or email Andrew.stewart@morrisonkent.com.



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