Probate and the role of the Executor

You may have heard the expression nothing happens without Probate. Well it is true! If you are the beneficiary of a Will and you are waiting for the assets to be distributed, you have to wait for Probate be issued by the Supreme Court.

“Probate” is a certificate that is issued by the Supreme Court to the Executor of the deceased’s Will.  Probate means that the last Will of a deceased person has been proved by the Supreme Court and the Will is registered with the Court.

The Executor is not authorised to deal with the estate of the deceased until Probate has been issued.

To apply for Probate, the Executor must swear an affidavit confirming the death of the deceased and identify all of the deceased’s assets.  The affidavit must be lodged at the Supreme Court with the original Will.   The Supreme Court shall consider the affidavit and the Will. If the Supreme Court is satisfied with the affidavit and the Will, the Court will issue the Probate certificate. If the Supreme Court has questions about the affidavit or the Will, the Court will issue a requisition for the Executor to answer.

The time frame for the Supreme Court to process an application for Probate can take anything from a couple of weeks to a couple of months. The time depends on the accuracy of the Executor’s affidavit and if there are any problems with the Will.

Executor of a will

Who will you choose to be your Executor?

Role of the Executor

The Executor has an important role concerning the estate of a deceased person. The Executor’s responsibilities include:

  • Looking after the estate.  The Executor must ascertain the assets in the estate and if necessary, arrange insurance for the assets.
  • Valuing the assets.  The Executor must obtain valuations from relevant authorities, such as banks, real estate agents, of the assets.
  • Completing income tax returns.  Before the assets can be distributed, the Executor must lodge a final tax return for the deceased to get clearance from the ATO of all taxes being paid.
  • Paying all debts.  The Executor must settle all of the deceased’s debts, including funeral costs, creditors, the ATO and fees for administering the estate.
  • Distributing the estate.  When all the debts are paid, the Executor must distribute the assets of the estate according to the directions in the Will.
  • Establishing Trusts.  If the Will specifies for assets to be held in Trusts, such as for minor beneficiaries, the Executor must establish the relevant Trusts and ensure the assets are placed in Trust.