What does this word mean and how does it affect me?

See the page “Some common words explained” on this website. If the word you are enquiring about is not covered, call us and we can assist.

When is a grant of Probate or Letters of Administration needed?

A grant is usually needed whenever some formal or important step needs to be taken on behalf of the estate of a deceased person. This varies from estate to estate. A grant will always be needed if the deceased person had real estate in his or her sole name, or other substantial assets in his or her own name.

Can I take on the role of executor even though I might want to bring a Part IV claim to challenge a Will?

Yes. This is so even if there is no other executor. The role of an executor extends beyond any claim that you might have regarding the Will having made inadequate provision for you and there is no reason why you should give up the ability to handle those tasks if you don’t want to. If you brought a Part IV claim the other executors or, if there are no other executors, one of the main beneficiaries in the Will, would perform the role of handling the opposition to your claim. 

The executor seems to be taking a long time to apply for a grant, can I do anything?

You can bring an application in the Court for the executor to show cause why he or she should not be replaced with another person to administer the Will. The administration of an estate cannot be held up simply because an executor fails to start his or her task.

Can I see a copy of the Will?

Many people have a right to see the Will of a person who has died. The circumstances vary depending on the relationship of the deceased to you, when the deceased died and when the Will was made. We can give advice on your specific circumstances. Once the Will is lodged with the Registrar of Probates and a grant made it becomes a public document and can be inspected at the Registrar’s office. Sometimes time is important and it is better to lodge a caveat at the Registrar’s office and obtain a copy of the Will once the Registrar lets you know that the grant application has been lodged. Lodging a caveat is not a step to take lightly and should only be done if you have consulted us about your position first.

What is needed for a valid Will?

At the very least there needs to be a document of some sort that was intended by the deceased person to have been his or her last Will. Usually the document needs to be signed in the presence of two witnesses who then also sign. In some cases a mark on the document by the deceased or comment by the deceased (without signature) adopting the document as his or her Will might suffice.

We can’t find the original Will

Simply because the original Will cannot be found does not mean that the Will fails. If it was last seen in the hands of the deceased, a Court might take the view that the Will was cancelled by the deceased destroying it. That is not always the case though, for example the Will might not have been in the possession of the deceased when it was lost. The answer depends very much on the specific circumstances.  If a photocopy of the Will is available the administration of the estate can sometimes proceed based on the terms of the photocopy.

The executors won’t tell me what is happening in the estate, what can I do?

If you are a beneficiary of the Will you are entitled to know the progress of the administration and to be provided with accounts by the executor. Often though executors do not provide this information and if a beneficiary is concerned then the executors can be made to comply with their obligations.

My mother has dementia and her last Will is out of date. Can a Will be made for her?

It is possible to apply to the Court for it to authorise the making of a Will on certain specific terms for a person who has lost the capacity to make a Will for himself or herself. This is a complex process and requires legal assistance.

I am my father’s power of attorney. How does my role and the executor’s role relate to each other once my father dies?

An executor has no power to act until a Will maker passes away. The office of a power of attorney on the other hand only operates during the lifetime of the person (“the donor”) and once the donor dies the power of attorney authority ceases. The two roles are completely separate in time. Where the power of attorney and the executor are different people and the person concerned dies, the power of attorney will need to hand over to the executor any documents or assets that were held for the donor. The power of attorney is accountable to the executor for the attorney’s handling of the donor’s affairs during the donor’s lifetime.