Navigating Probate: Guidance for Executors
Losing a loved one is never easy. Being appointed as an executor adds a layer of responsibility during an already emotional time. Executors are tasked with administering the deceased’s estate, a process that often requires navigating the complex legal framework of Probate.
Whether there is a Will, a lost Will or no Will at all, understanding your duties and seeking professional guidance is essential.
Call out - Probate can be complex but with the right guidance, executors can ensure an estate is managed correctly and respectfully.
What is Probate?
Probate is the legal process through which a deceased person’s Will is validated by the Supreme Court. It gives the executor the authority to manage the estate, from paying debts and closing bank accounts to selling property and distributing assets.
Even with a Will, Probate requires careful attention to legal requirements, deadlines and potential disputes among beneficiaries. The complexity increases when a Will is lost or when there is no Will.
Probate When There is a Valid Will
When a valid Will exists, Probate is generally more straightforward but it still requires careful administration.
Executor responsibilities include:
• Applying for Probate with the Supreme Court
• Notifying beneficiaries and creditors
• Collecting and managing assets
• Paying debts and taxes
• Distributing the estate according to the Will.
Challenges can include:
• Ambiguous provisions in the Will
• Disputes among beneficiaries
• Difficult-to-value assets.
How a Probate expert helps:
A Probate expert can assist in several important ways. They ensure the Probate application is lodged correctly, helping to avoid delays or errors in the legal process. They also help with the valuation of complex assets, such as property or shares in a private company. For instance, if an executor discovers shares in a private company, a Probate expert can arrange for a professional valuation and provide guidance on how the asset should be distributed among beneficiaries. Additionally, they offer advice when disputes arise or when clauses in the Will are unclear, helping to resolve issues efficiently and in line with the deceased’s intentions.
Probate When a Will is Lost
Sometimes a Will cannot be found, making Probate more complex.
Executor responsibilities include:
1. Search for the Will in all likely locations
2. Gather evidence from witnesses or professionals
3. Apply for a court order to prove the lost Will.
Challenges can include:
• Proving authenticity to the court
• Managing disputes from family members
• Potential delays in estate administration.
How a Probate expert helps:
When the original Will cannot be located, a Probate expert can help by assisting in collecting affidavits and witness statements. If, for example, the original Will is missing but two witnesses saw it signed, a Probate expert can gather affidavits, submit a court application and manage estate assets during the process. They can also represent the executor in court proceedings if required.
Probate When There is No Will (Intestacy)
If someone dies without a Will, they die ‘intestate’. Intestacy laws dictate how the estate is distributed.
Executor or administrator responsibilities include:
• Apply for Letters of Administration
• Identify legal beneficiaries under intestacy rules
• Collect and manage assets
• Pay debts and taxes
• Distribute the estate according to the law.
Challenges can include:
• Complex family situations
• Potential disputes over entitlement
• Time-consuming administration.
How a Probate expert helps:
Where a person dies without a valid Will, a Probate expert can help by applying for Letters of Administration, identifying all legal beneficiaries, advising on disputes or claims and managing complex assets. If, for example, a deceased person leaves a spouse and children from a previous marriage, a Probe expert will ensure that assets are distributed according to intestacy rules and that disputes are managed fairly.
Practical Advice for Executors
Being an executor is a significant responsibility, and Probate law can be complex. Whether you are dealing with a valid Will, a lost Will or no Will at all, understanding your duties and seeking professional guidance is critical. 1. Seek expert guidance early – Probate law is complex and professional advice reduces risk.
2. Keep detailed records – Document all communications, transactions and decisions.
3. Communicate with beneficiaries – Clear updates reduce potential disputes.
4. Understand timelines and obligations – Executors have legal duties and deadlines.
5. Protect estate assets – Secure property, bank accounts and valuables immediately.
For further information and advice on navigating the Probate process, call the Aubrey Brown Lawyers Wills & Estate Planning team on 4350 3333.
