Wills and Executors: How to take the pain out of probate

If you are a property owner or have assets worth more than $50,000 in Australia, when you leave this life, your estate will usually need to go through the probate process.

What is probate?

Probate is a legal process where a court gives the legal tick of approval for the person named as the executor to administer the estate. Once obtained, the grant of probate allows organisations such as banks to accept instructions from the executor regarding your assets.

Applying for probate often takes some time, as information needs to be obtained from banks, companies whose shares you may own and superannuation funds. Formal valuations of real estate or other assets (such as antique items) may also be necessary.

What can go wrong?

While the probate process can be relatively seamless, there can sometimes be issues that arise.

If you die without a will, a court will appoint someone to administer your estate. The person entitled to the greatest benefit from your estate can apply to the court to be appointed as administrator and they can undertake the same duties as an executor. However, if there are multiple beneficiaries who are entitled to an equal share, family squabbles and legal wrangles may occur.

If you do have a valid will, your chosen executor needs to be deemed ‘fit’ by the court to administer the estate. The court may not grant probate to the named executor if there is a concern that the administration of the estate would be affected by that person’s appointment. Where named executors are bankrupt, residents outside Australia, suffering from physical or mental incapacity, convicted and imprisoned, the court may refuse to grant probate to such persons.

There is also the chance that disgruntled beneficiaries may try to have an executor removed. If your beneficiaries have justifiable grounds, the court has the power to review executor appointments and, in some cases, can replace the appointed executor.

The exact legislative requirements for this can vary from state to state and will be based on the facts and conduct of the executor.

In a recent matter Equity Trustees dealt with, the court removed the executors named in the will because of their acrimonious relationship, which led to their inability to properly administer the estate. The court, in that case, appointed an independent administrator.

Overcoming potential issues

Even without any issues arising, being the executor of a will is a labour-intensive job. Just some of the tasks an executor may need to carry out include:

• making funeral arrangements
• locating your beneficiaries
• arranging care for dependants and pets
• redirecting mail
• cancelling utilities, driver’s licences, memberships, insurance policies and other payments
• arranging valuations of your assets
• claiming medical expenses
• locating assets in Australia and overseas
• setting up an estate bank account
• applying for an estate tax file number
• arranging to lodge a tax return for the estate.

In order to make the process more seamless for your executor, they should ideally have a copy of the will and know where the original is kept and which lawyer you used to create it. It’s incredibly important for the original will to be kept in a safe and secure place. The loss of an original will can cause an administrative nightmare for your executor and where the original will cannot be traced to the will maker, there is a presumption at law that it has been destroyed.

You should also keep accurate records of your assets and liabilities and keep these up-to-date details with your will.

And of course, as with any legal process, you should seek the right advice when putting together your estate plan, to ensure you have the right information and advice to hand.

If you’re keen to find out more about the executor process and what’s involved, we have a free Executor Toolkit you can download here, which is a step-by-step guide to executor responsibilities and actions you need to take.

More information about Equity Trustees’ wills and estate planning services is available here. For more articles from Marie Brownell, head here. For more articles on estate planning, head here.