A Guide On Probate

Are you an executor or beneficiary of a will? Most people do not comprehend the probate process. This excerpt contains probate FAQs to help you inherit property or execute a will. 

Legality Of A Will

The will is at the core of any estate planning process. However, the document must meet the set legal requirements. Below are a few facts about the legality of wills in Australia. 

  • Two witnesses must notarize the document.
  • The testator must be of sound mind.
  • The will should not have contradicting statements or clauses.
  • The will should have a codicil if the testator wishes to make amendments.
  • The testator cannot bequeath assets that are not in their name.
  • The beneficiaries cannot attempt to execute the will when the testator is alive. 

Will Execution 

Once the testator writes the will, they must appoint a trusted individual to execute it. The executor manages the estate from when the testator dies to when the beneficiaries receive their inheritance. Ideally, the executor files for probate to gain rights to the deceased's property. Once the court issues a grant of probate, the executor can:

  • Gain access to the deceased's bank accounts.
  • Pay estate taxes and debts.
  • Commence the estate distribution process.
  • Conduct estate cleaning. 

The executor has a right to relinquish their duties. If this happens, the secondary executor assumes this duty. However, the will must have more than one executor. The beneficiaries could also choose an executor or ask the courts to appoint an executor. The executor must execute the will within the prescribed time limits. If they do not, the beneficiaries could file a motion to appoint another executor. 

Will Disputes 

A beneficiary or external party could dispute the will if it does not meet the minimum requirements or if the individual feels the will is unfair. Below are the grounds to dispute a will in Australia:

  • If the testator has more than one will, the beneficiaries cannot tell the deceased's wishes.
  • If the will does not meet the minimum legal standard.
  • If a beneficiary feels that the will does adequately provide for them.
  • If a third party feels that they should have been included in the will. For instance, a child born out of wedlock can claim a portion of the inheritance. 

There are several ways to resolve a will dispute. First, the beneficiaries could opt for an out-of-court settlement to settle the conflict. Alternatively, they could opt for a court process. Nevertheless, all parties should consider hiring a wills and estates lawyer to help with the process. 

Contact a lawyer to learn more about probates.

About Me

Defending my clients at all costs

When I sign on to defend a client, I have to find ways to poke holes in the prosecution's case no matter how air tight it seems. There are always technical and procedural issues to be enforced and work to be done to make sure my client's story is as strong and believable as possible. People who are not familiar with the justice system are often intimidated by the legal processes, so I help them to adjust quickly so that they can manage the stressful situations. This blog is for first time defendants wondering what exactly their lawyers do to manage the defense process behind the scenes.