Understanding the Probate Process: What Happens After Someone Dies?
Losing a loved one is never easy, and dealing with their estate can feel overwhelming. Probate is the legal process of administering a deceased person's estate, ensuring their assets are distributed according to their will (or intestacy laws if there is no will). Here’s a breakdown of what happens after someone passes away and how the probate process works.
1. Determining Whether Probate is Required
Not every estate requires probate. If assets are jointly owned, such as a shared house or bank account, they may automatically pass to the surviving owner. However, if the deceased owned assets in their sole name, probate is usually needed to legally transfer them to beneficiaries. Other instances where probate may be required include:
When a financial institution requires a Grant of Probate to release funds from the deceased’s accounts.
If the deceased owned shares or investments that cannot be transferred without probate.
When the estate includes real estate solely in the deceased's name, requiring probate for sale or transfer.
If there are disputes over the validity of a will or claims against the estate, probate may be necessary to resolve legal issues.
When business interests or trusts form part of the estate, probate may be needed to confirm authority to manage these assets.
Key Tip: If you’re unsure whether probate is required, consulting an estate solicitor can help clarify the situation.
2. Locating the Will
If the deceased had a valid will, the named executor is responsible for managing the estate. If there is no will, an administrator (usually the next of kin) will need to apply for Letters of Administration to take on the same role.
Key Tip: It’s essential to locate the original will and ensure it’s legally valid before proceeding with probate.
3. Applying for Probate
The executor must apply for a Grant of Probate through the Supreme Court of NSW. This involves submitting the original will, death certificate, an inventory of the estate’s assets and liabilities, and a formal application.
Key Tip: Accuracy in the application is crucial to avoid delays in obtaining probate.
4. Paying Debts and Taxes
Before distributing the estate, the executor must ensure any outstanding debts, funeral expenses, and taxes (including income tax and potential capital gains tax) are paid from the estate.
Key Tip: Keeping clear records of payments can help prevent future disputes or claims against the estate.
5. Distributing the Estate to Beneficiaries
Once debts are settled, the executor distributes the remaining assets according to the will. If no will exists, assets are distributed under intestacy laws, which dictate the legal beneficiaries.
Key Tip: Beneficiaries should be informed of their entitlements and kept updated on the timeline of distribution.
6. Handling Family Disputes and Challenges
Unfortunately, disputes over estates are common. Beneficiaries who feel they have been unfairly left out or inadequately provided for can challenge the will through a family provision claim in court.
Key Tip: Seeking legal advice early can help prevent prolonged disputes and ensure the estate is distributed as smoothly as possible.
Final Thoughts
Probate can be a complex process, but with the right guidance, it doesn’t have to be overwhelming. Whether you are an executor managing an estate or a beneficiary with questions, professional legal support can make all the difference.
If you need assistance with probate or estate administration, contact our team at Granleese & Co for expert guidance and peace of mind.
