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GRANT OF PROBATE

Whilst we maintain a position as to the necessity for individuals to have a Will, it is also essential that you ensure that your estate is in order. Whilst one can never predict when one is going to pass away, you can do things to ensure that when that time comes the person who you appointed as the executor of your estate can distribute your estate in a timely manner and ensure that the your estate is not wasted in legal fees. 


In order to for a Grant of Probate to be obtained in a timely manner consider your selection of executor/s carefully. The best executor/s are people who have a vested interest in your estate and are based in South Australia, or your state of residence. If you appoint a cousin to whom you are not leaving anything, whilst you hope that they will deal with the estate in a timely manner, they do not have the same interest as a child who stands to receive a considerable amount of money. Further, if an executor does not wish to deal with obtaining the Grant of Probate they can go to a lawyer and have the lawyer deal with the estate. The lawyer’s fees are then paid out of the estate. If the executor has no interest in your estate, they are more likely to instruct the lawyer to deal with the entire estate even right through from obtaining the Grant of Probate through to the collecting in and distribution of the estate. If a person has an interest in the estate, they will usually only instruct the lawyer to obtain the Grant of Probate, and once this has been obtained, they will take on the task of collecting in and distributing the estate. As they will wish to prepare the estate for their benefit.

The reason for stating that the best executors are those based in South Australia is for the practicality if the executor/s are engaging a lawyer to obtain grant of probate the lawyer will need to verify the identity of the executor/s in the same manner of the Verification of Identity as required when you buy or sell a property. If the executor/s are interstate then the lawyer needs to arrange for an identity verification to be conducted by a lawyer local to the executor/s, which just adds to the overall cost. Further, when documentation such as a Will needs signing it will take longer as it has to be sent by post and different states have differing requirements for the Grant of Probate, and despite providing very detailed signing instructions mistakes can occur and the documentation may have to be returned to the executor/s to be signed again.

As noted above executors will often engage a lawyer for the purposes of assisting with obtaining the Grant of Probate for your estate, as this is the legal aspect of dealing with an estate. In order to obtain the Grant of Probate the lawyer is required to produce a complete statement of your assets and liabilities as at the date of your death. If your record keeping is poor your executor will not be able to provide the lawyer with full details such that they can complete a statement of your assets and liabilities in a timely and cost effective manner. The lawyer will have a number of questions for your executor/s, which he, she or they will not be able to provide. The lawyer, to ensure that the entire estate is captured for the Grant of Probate, and may have to make enquiries with any financial institutions with whom they reasonably believed the deceased may have had accounts to confirm whether or not such accounts continue to exist.

A further issue with respect to dealing with your estate in a timely manner is how your name is recorded against your assets. If your legal name is Lawrence Johnston, but everyone refers to you as Laurie, you should not buy, or acquire assets such as property, shares, or open bank accounts in the name of Laurie Johnston. If you do then executors will need to provide affidavits as to your aliases, which adds additional costs to and potential delay dealing with your estate. Your friends can still use your abbreviated name, but for all official documents use your full legal name.

By following the above recommendations you will save your executor/s a lot of aggravation. You will also minimise the cost of handling your estate and ensure that your beneficiaries get the maximum benefit of your estate in a timely manner.

If you have any inquires regarding your estate or your Will please contact us for a free consultation.