WILLS & ESTATES FEATURE
UNDERSTANDING GRANT OF PROBATE
THE LAW AND YOU
It is a common misunderstanding that a Grant of Probate or Letters of Administration is necessary in every estate. ZINTA HARRIS explains why it’s worth checking before spending.
Baby Boomers are retiring which means they have many legal issues to attend to and, as DON MACPHERSON suggests, the pandemic has heightened the need for expert advice.
A
grant is a Supreme Court-issued document that recognises someone’s authority to administer the estate. The three main types of non-contested grants are: 1. Probate, when there is a will and the named executors are willing and able to act; 2. Letters of administration on intestacy, when there is no will; 3. Letters of administration with the will, when there is a will, but a person other than the named executor will manage the estate. For example, if the only named executor has pre-deceased, is incapable, or wishes to renounce. While there are other types of grants issued for special circumstances, these three are the most common. Sometimes in the simplest estate cases, no grant is needed, which means you can avoid the cost of making the application, particularly if there is no risk of litigation during the estate administration. In Queensland, if the only asset of significant value is a house or other real estate, then it’s possible to have the title to the property transferred to the named beneficiaries through the land titles registry.
In most non-contested estates, however, applying to the court for a grant will be necessary before any other steps can be taken. This is because most estates are made up of more assets than just one house. Banks and other institutions will often have a monetary threshold which will determine whether they will require a grant of representation before transferring assets or funds to the personal representative. The Australian Taxation Office (ATO) also has a policy requiring this formal representation before disclosing
information about the deceased’s tax affairs or paying any tax refund. Even if only one bank, institution or the ATO insists on a formal grant, then an application will be required. If there is a risk of litigation against the estate, or if court proceedings need to be commenced on behalf of the estate, a grant should be obtained so that the legal personal representative (the technical name for the person who personally represents the deceased in the administration of the estate) has the proper authority to make and defend court applications and has access to the protections given to them under the relevant legislation. If you have been named an executor of a will or if you are entitled to apply for letters of administration and you have worked out that a grant is needed, the next step is to make the court application for a grant. We have free checklists and eBook resources for executors and administrators. Zinta Harris is an accredited specialist in succession law and business law (Qld) and owner of Resolve Estate Law. Call 3371 0795 or visit resolveestatelaw.com.au
IF YOU need an electrical job done you don’t get a plumber, you choose someone who knows what they are doing because they do it every day. Similarly, generalist solicitors who do conveyancing, personal injury claims and criminal law, are not the experts in elder law. Lawyers for seniors, or elder lawyers, are trained by life and years of practice, to offer specialised advice covering the range of legal issues that affect families in their senior years. Clients of a certain age tend to be “old school” in terms of values. Trust is vital. While cost is, of course, always important, elder law clients tend to look for professionals –lawyer, doctor, accountant – as longer-term trusted advisors. They are less transactional, less focused on changing from supplier to supplier, and more focused on developing a relationship of trust, integrity, and familiarity. The key is
Practical Common Sense Legal Advice for you and your loved ones Premier Legal Advisors for: • Estate Management • Wills • Estate Disputes • Retirement Village Contracts • Aged Care Contracts • Elder Law VIDEO CONFERENCING AVAILABLE
26 YOUR TIME MAGAZINE / July 2022
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