- Thursday, April 25, 2024
By: Eastern Eye Staff
Probate is a legal procedure that takes place after someone passes away. It is a necessary process to understand, as it can significantly impact the deceased person’s estate and any heirs or beneficiaries.
Here are 10 essential things you must know about probate that can help you navigate this sometimes-complex area of law.
Probate is a court-supervised process for settling an estate in accordance with the wishes of the deceased. It involves managing assets, paying debts, and distributing what remains among those entitled to receive it under the Will or state law. The probate aims to ensure that all creditors and heirs receive the entitled amount and that the remaining assets are taken care of as per the deceased’s wishes.
Many probate terminologies may be confusing, especially when you are already dealing with the loss of a loved one. The following are a few key terms explained for better understanding-
Decedent/Deceased: The individual whose estate is through the probate process.
Executor: The person responsible for carrying out the directions in a Will is an executor or personal representative.
Administrator: If a person passes away without leaving a Will, the Supreme court will appoint an executor, referred to as an administrator.
Intestate: The case is intestate when a person passes away without a Will.
Intestacy: State rules governing intestacy determine how to distribute the assets in the absence of a Will.
Letters Testamentary: A Supreme Court letter that authorises the executor to administer the Will.
Notice of Probate: Notices that the executor must deliver in writing to the heirs (“interested persons”) and creditors.
Small Estate Affidavit: Low-value assets are eligible for administration without probate. However, there need to be certain documents to testify that the estate doesn’t require probate. Such documents are small estate affidavits.
Anyone who may have a claim against the deceased’s estate owes a legal notification before commencing the probate procedure. It includes creditors, beneficiaries, and heirs in the Will or other documents related to the estate. In some cases, courts may require public notices in newspapers to notify potential claimants of their rights under state law.
The time it takes for probate in Victoria or elsewhere depends on several factors, including how complex the estate is and whether there are any disputes between claimants or beneficiaries that need to be resolved by a court. Generally speaking, the probate takes 6 to 12 months to settle.
The executor named in the deceased’s Will typically handles most aspects of probating an estate. Sometimes, they may hire an attorney or other qualified professional to guide them through this complex process. If there is no executor or they cannot fulfil their duties, then a court may appoint someone else as an estate administrator so that proceedings can move forward without delay.
Probating an estate involves several steps, such as-
All estates do not necessarily have to undergo the probate procedure. In some cases, estates can avoid probate altogether by utilising certain types of trusts (such as living trusts). It allows assets to pass directly from one beneficiary/trustee to another without requiring court approval. However, such a step requires advanced foresight on behalf of both parties involved before death occurs, so it isn’t always feasible, depending on individual circumstances.
If the court permits payment from the estate, legal costs and personal representative fees can receive an amount out of it. The executor cannot reimburse attorney expenses from the estate if the court does not approve the payment. The only other choice is for all beneficiaries to concur that they should collectively pay a fee.
The Supreme court schedules the first probate hearing so that interested parties have an opportunity to object. In the hearing, the court will name the person who will manage the division of assets and settle the estate. The executor will be given official documentation from the court allowing them to represent your estate. Below are the required documents that the executor must need to ensure smooth proceedings during the first probate meeting-
The executor must obtain all the final waivers from the beneficiaries, creditors, and taxing authorities. The executor also ensures that all the matters related to the Will settle. When all the tasks are complete, the court will allow the estate to be closed, at which point the executor will no longer be held accountable.
Conclusion
Understanding how probate works is essential if you want your loved one’s legacy handled well after they’re gone. Knowing these 10 key points should help ensure that happens. It’s vital for protecting your financial interests and preserving your family history and memories.
If you still have doubts, you can contact Probate Consultants, as they can guide you well and help acquire the grant of probate at the earliest.
