There are a couple of things guaranteed in life, and death is unfortunately one of them. In Part 5 of our EP FAQ series, we explore what the legal afterlife looks like – otherwise known as ‘estate administration’.
Can I get a copy of someone’s Will?
Generally, your Will remains a private document until you die. After that, if it is lodged for probate then it will become a public record accessible by anyone. However, there are some circumstances where you might be able to get a copy of Will without waiting for it to be admitted to probate.
If the testator is still alive, you can request a copy directly from the testator and the testator can decide to provide a copy to you – though, the testator can say no! If you are the testator’s attorney under a Power of Attorney, there may be a specific power in the document that allows you to obtain a copy of the Will after the testator has lost legal capacity. In some circumstances, the Court may make an order ordering the release of a copy of the Will if it is considered necessary to resolve a dispute.
If the testator has died, and you are the Executor of the Will, you are entitled to see the Will so that you can administer the Estate. If you are named in the Will or are a beneficiary under the Will you may be able to see the Will depending on the laws in your jurisdiction. Again, in some circumstances, the Court may make an order ordering the release of a copy of the Will if it is considered necessary to resolve a dispute.
Do I have to carry out a reading of the Will?
The tradition of a formal reading of the Will isn’t legally required. Beneficiaries are usually informed directly by the Executor about the contents of the Will. Your entitlement to see a Will depends on the relevant state or territory law that applies.
What is a grant of probate?
A ‘Grant of Probate’ is a document which certifies that the Supreme Court of a state or territory recognises that the document presented is the last valid Will of the deceased, and that the executors now have the authority to deal with the estate assets and liabilities.
What happens if the deceased died without a Will?
If the deceased died ‘intestate’, i.e. without a valid Will, an application for Letters of Administration is made. A person is appointed as an ‘Administrator’ to finalise the personal affairs of the deceased person. The person that takes on the role as Administrator is usually the closest living family member of the deceased, such as their spouse/partner, child, or parent.
It is also possible to be partially intestate. For example, a person might have a Will but it may not be complete or deal fully with the deceased’s assets.
Does an Estate always need probate?
Not all estates will require probate. The need for probate depends on the nature and value of the assets in the estate, as well as the jurisdiction. For example, if assets are held ‘jointly’ then probate is not required on the death of the first joint owner. Probate may also be unnecessary when there is no Will or low value assets.
However, you will usually need a grant of probate if the deceased had significant funds in a bank account, public shares, real property in their own name, or an accommodation bond with a nursing home.
How long does it take to get a Grant of Probate?
The time for obtaining a Grant of Probate (or Letters of Administration) can vary based on factors like the complexity of the estate and court processes. It can take a few weeks or a few months or even longer. Often the application for a grant of letters of administration will take more time, due to the additional steps that need to be taken if there is no Will.
If the Court is not satisfied with an application for a Grant of Probate or Letters of Administration, it will issue a ‘requisition’ any questions about the application that it wants clarified before the grant is issued, or if there is anything wrong or missing in the application. Responding to a ‘requisition’ may lead to the assessment taking considerably longer.
Some factors which can slow down the process of obtaining a Grant of Probate include:
- Your location and their capacity (eg if you are located in SA or NSW);
- An incorrectly signed or incomplete Will which could be considered an ‘informal will’;
- A complex application due to the personal circumstances of your loved one, a dispute or the type of property involved;
- A copy of the Will being lodged due to the original being lost; and
- Marks, creases, hand-written notes or damage to the Will.
The solicitor who assists you with your application for a grant should be well versed in the issues to look out for and able to advise you on how to address these potential issues in your application, to minimise the likelihood of delays or a requisition.
What documents do I need to get a grant of probate?
Generally, to get a Grant of Probate, you’ll need the original will, the death certificate, and an inventory of assets and liabilities. Once you have gathered the documents together, it’s important to keep them in order and stored securely, ready for the Probate Application.
If you are applying for a Grant of Letters of Administration, you will need the death certificate and the inventory of assets and liabilities. In addition, you will usually need to prepare an additional affidavit to explain your relationship to the deceased.
Aside from documents relating to the deceased, each state or territory will have its own forms that are required to be prepared, executed and lodged as part of the application. A solicitor can assist you to prepare the application documents and have them signed and lodged.
More questions about your estate planning?
Check out the rest of our EP FAQ series:
- EP FAQ Part 1: What is estate planning and what do you need to consider?
- EP FAQ Part 2: Wills
- EP FAQ Part 3: Challenges to a Will
- EP FAQ Part 4: Financial Decision Making and Medical & Lifestyle Decision Making
- EP FAQ Part 6: Super
The information contained in this post is current at the date of editing – 25 September 2023.