To make sure you have all the information you need, we’ve summed up what you need to know about probate and executing a family member’s will.
WHAT IS PROBATE?
Probate is the process of proving and registering in the Supreme Court the last will of a deceased person. A grant of probate means the Will is valid and allows the person dealing with the estate to distribute assets to the beneficiaries named in the will.
When a family member passes away, determine whether they made a will. The will is a legal document that outlines what happens to that person’s possessions when they’re gone. But the will isn’t legally binding on its own, there are still steps in place to make sure the will is viable, and steps family members can take if they want to contest the will.
At its most basic the will needs to be in writing, it needs to be signed by the will maker, it needs to be witnessed by two people and be made by someone of testamentary capacity. That just means that they’re in a fit state of mind to legally understand what they’re doing. If these things are all done, then the will can be used in the probate process to help divide up the estate.
SO HOW DOES PROBATE WORK?
Probate is a process that occurs when a family member passes away and their will is executed. It is the process by which assets listed in the will are formally handed over to the executors of the estate to be distributed. This way, everything listed in the will is in safe hands, until it gets handed over to the people listed in the will.
This is done by the court system in each state, and the executors of the estate need to swear to distribute the will as instructed by the court.
It’s at this point that the family members are able to contest the will if they feel that it isn’t fair or feel that something has been left out. If someone challenges the will then the court will hold off on probate until the contest is sorted.
- Real estate
- Income or capital allocated by the will maker; and/or
- Cash investments
- Life insurance proceeds (except when the deceased is the policy owner and beneficiaries have been validly nominated)
- Jointly owned assets that are held as joint tenants - e.g. family home (If the owners are tenants in common, the rights to a portion can then become part of the estate)
- Super pensions or annuities (except when directed by the member to be paid to the estate)
An estate can be made up of:
But doesn’t usually include these items:
When dealing with a will and estate planning it is best to talk to a lawyer. That way you can be sure that the whole process is correct before any action needs to be taken. Being prepared can really save you time and headaches down the line.
To find out more about planning a will visit insuranceline.com.au/will to download a free will kit.
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