Probate is when the last will and deceased person is proved. When a person dies and their assets are not just in joint names with other, it is incumbent upon the executor for to obtain what is commonly understood to be a grant of probate. The purpose of this short article is to set out the process and introduced the concept of testator’s family maintenance.
I am a lawyer named Glenn Duker. I have experience in probate matters. I also have experience as a lawyer in testator’s family maintenance claims.
The probate process is mostly straightforward in that the steps are fairly methodical. The intention of the Executor to apply for a Grant of Probate must be advertised. Upon the expiration of 14 days, the Application for the Grant is lodged with the Supreme Court. If the application is in order (that is, there are no defects in the paperwork) and there are no challenges to the estate, the probate will be granted. The assets will then be able to be distributed by the Executor pursuant to the Will.
Sometimes there will be a challenge to the estate. This is when the testator’s family maintenance provisions in the legislation are invoked. This will often occur when the beneficiary is not catered for sufficiently or where a person who believes they should have been left something is not a beneficiary at all.
There are various criteria which a Court will look at in determining whether a testator’s family maintenance claim has merit (and if so to what extent) such as whether the special needs of the Applicant and the relative wealth of the other beneficiaries. The law has widened in this area in recent years to include a broader range of people with a wider range of needs. The fees for any challenge to the Estate (and any defence by the Executor on behalf of the Estate) will be borne by the Estate.
This article is by way of general information only and is the view of Glenn Duker. You should always get proper advice from a lawyer who to look at your individual case.