Probate In Canberra

When a person passes away in Canberra leaving assets in their deceased estate, it may be necessary for an executor or administrator to apply for probate to manage the estate. This article explains the purpose of seeking probate in Canberra, and highlights some common errors to avoid when applying for a probate grant.

Who should apply for probate in Canberra?

When there is a valid will, only the named executor can apply for a Grant of Probate. When the deceased died without making a will (and is, as a result, intestate), or the named executor from the will is unavailable or unwilling to act, a family member can apply for Letters of Administration to act as administrator of the estate.

The Registrar of the Supreme Court of the ACT has statutory authority to grant probate to an appropriate person who has submitted the required forms and affidavit material. The Supreme Court of the ACT will usually award Letters of Administration to the deceased’s next of kin, such as the spouse, partner or child. The team at Go To Court Lawyers can help you work out which grant is the appropriate choice and assist you with the probate application.

When is it necessary to apply for probate in Canberra?

It is not always necessary for an executor or administrator to obtain a probate grant. Probate is typically a requirement before banks and title offices will transfer significant assets into the safekeeping of the executor or administrator. However, sometimes a testator only owns property in joint tenancy with their spouse, and their other major assets such as superannuation and life insurance are transferred according to the rules of a binding death benefit nomination. In that instance, there may be no specific need to obtain a grant of probate. Nevertheless, Go To Court Lawyers would recommend obtaining a grant, as it provides the executor with legal protection from personal liability. If the executor acts to distribute assets without a grant of probate, they are essentially taking on responsibility for the validity of the will. Applying for a grant of probate will shift this responsibility to the Court. In that event, even if questions are later raised about the validity of the will, the executor will not be held legally liable for distributing the estate according to an invalid will.

Cost of probate in Canberra

In Canberra, the costs of probate vary depending on the filing and solicitor fees. The estate is responsible for these costs, so the personal representative can draw from the deceased’s accounts to defray these expenses. If the funds are not accessible following the death of the account holder, the estate will reimburse the executor or administrator for any outlays before paying other debts. 

Probate deadlines in Canberra

There are wait times and time limits involved in applying for probate in Canberra. An applicant needs to advertise their intention to file an application in The Canberra Times and wait for two weeks before filing with the court. The applicant must then ensure that they apply within six months of the date of the deceased’s death. The court will only hear an application after this deadline if the applicant can justify the delay.

Reseal of probate in Canberra

Sometimes it is necessary to obtain a reseal of a grant issued in another state or territory. This will most often be required when a deceased who owns real estate in Canberra lived in another jurisdiction. In that case, the executor or administrator will seek probate in the jurisdiction of the deceased’s last place of residence, and then obtain a reseal of probate to deal with the property located in Canberra. 

Probate in Canberra: common mistakes to avoid

• An applicant must file duplicate probate grants and attach wills to both copies.  The original will must be filed separately and signed by the probate applicant and the witnesses to the affidavit.
• A probate application needs to reference every executor named in the will. If all the named executors are not signatories to the probate application, the affidavit attached to the application must note this fact and explain the reason for the discrepancy.  Evidence of the reason should be attached (for instance, if the executor is deceased, a death certificate should be presented to the court).
• The probate applicant needs to pay meticulous attention to the details contained in the application, particularly the names of the deceased and other interested parties. The application and affidavit must depose any circumstance where an individual has been known by more than one name, or has different spelling variations of their name on different documents. The applicant needs to annex evidence of name change such as deed poll or marriage certificate.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.