If a person passes away leaving a Will, they will usually name a person who is responsible for carrying out the instructions left in their Will. This person is called the ‘Executor’. The Executor will most likely need to apply for what is known as a Grant of Probate.
A Grant of Probate is an order of the Supreme Court which allows the Executor to deal with the belongings of the deceased. Once granted the Executor is then able to carry out the wishes of the deceased as stated in their Will.
However, if a person passes away leaving no valid Will, the next of kin or the major beneficiary, will need to apply for what is known as Letters of Administration to be appointed as the Administrator of the Estate. This allows the Administrator to deal with the belongings of the deceased as though they were appointed the Executor under a Will. The Administrator will distribute the belongings of the deceased as set out by the law.
Our solicitors are able to advise you whether a Grant of Probate or Letter of Administration is needed and we will assist you with preparing the documents required to lodge the applications.
Our solicitors are further able to liaise with other involved parties, and are able to contact banks, employees, superannuation funds and beneficiaries on your behalf and are able to assist with winding up and administering the Estate including transferring property and closing bank accounts.
Whilst a person has a right to make a Will and outline who should inherit their Estate it may be that an application is made contesting the Will. There is no blanket rule when it comes to Estate Litigation; however there are four main categories which claims fall into as follows:
1. Testator Family Maintenance Claims or Part IV applications:
These are cases where a family member believes they were not properly provided for in a deceased’s Estate (whether by law or by the terms of a Will), and that the deceased had a moral responsibility to provide for them. These claims are very limited with regard to who may make these types of applications.
2. Lack of Testamentary Capacity Claim:
These are cases where it is believed that the Will-maker was not capable of making a will. The most common example of this is where it is believed that the Will-maker was suffering from a mental illness which caused them to not have the required knowledge or understanding of what he or she was signing.
3. Undue Influence Claims:
There are claims where it is said that the Will does not reflect the Will-makers true intention as at the time of making the Will, the Will-maker was ‘unduly influenced’ for example by receiving pressure from another person to either make the Will or put a certain thing into the Will.
4. Breach of Trust claims:
These claims are where a beneficiary believes an Executor or Trustee has failed to act appropriately in the administration of the Estate or trust and is thus asking the Court to remove the Executor or Trustee. A common example is where an Executor or Trustee has failed to distribute the assets of the Estate.