What is Probate?
‘Probate’ is an Order from the Supreme Court that a certain person is entitled to deal with the assets, debts and superannuation entitlements of a deceased person. Such assets, debts and superannuation entitlements are known as the deceased person’s ‘estate’.
Where the deceased left a Will, the person who obtains the benefit of Probate is called the ‘executor’. Where the deceased did not leave a Will, the person is called the ‘administrator’, and instead of obtaining ‘Probate’ that person obtains ‘Letters of Administration’.
What is the practical effect of Probate / Letters of Administration?
Probate / Letters of Administration allows an executor/administrator to transfer the deceased’s assets and superannuation entitlements from the deceased’s name into the name of ‘the estate of the deceased’ so that such assets/entitlements can be distributed in accordance with the terms of the deceased’s Will, or in the way the law prescribes if the deceased died without a Will. Usually the first job that takes place after the assets and superannuation entitlements are gathered is to liquidate them (that is, convert them to cash by selling them if necessary). That cash is then used to pay out any debts the deceased held before it is distributed to beneficiaries.
Is Probate / Letters of Administration necessary in all cases?
The short answer is no, however more often than not Probate / Letters of Administration will be required. This is because most companies and organisations which hold a deceased’s assets and superannuation entitlements require a copy of the Grant of Probate or Letters of Administration before they will transfer assets and superannuation entitlements into the name of an estate.
This article was written by Kyle Barram. Kyle is an estate lawyer based in Townsville. Kyle can also prepare a Will for you if you are in Townsville or Mount Isa.