Applying for Probate: the top 10 issues that come up

The Ultimate Guide

1 Locating the original Will

When applying for Probate, the original Will is required. Often, people think that they are in possession of the original Will, but only have a copy. Usually the original has been kept elsewhere for safekeeping and is with the solicitors who prepared the Will, or in Safe Custody at a Bank.


Probate Consultants Tip

You can check if you have the original Will by looking at the signatures to see if they have been written in pen. The trick to this is to hold up the Will in front of a direct light source. If the signatures have been written in pen, there will be a slight indentation on the opposite side of the page. If not, the signatures are most likely a copy, indicating that the Will is not the original.

If the Will is not the original, executors must track down where the original is located.

If the Will was prepared by lawyers, it is very likely being held at the law firm that made the Will, in which case the executor can request for it to be released.

If the Will is not with lawyers, executors can check with the following institutions to discover whether the Will has been deposited for safe keeping:

  • Bank/s where the deceased held accounts
  • A trustee company like the State Trustees in Victoria
  • The Supreme Court

If the original Will cannot be found, executors can still apply for Probate using a copy of the Will. This application is more complex as the Court must be satisfied that sufficient attempts to locate the original Will have been made.

If you are having trouble finding the original Will, call Probate Consultants on 1300 561 803 for a Free Consultation. We are the experts at locating original Wills and making Probate easy.

2 Not all Executors named in the Will want to apply for Probate

Some Wills name multiple executors, but not all executors have to apply for Probate. In this case, there can be a ‘leave reserved’ application. This is where one or more executors elect not to apply for Probate but do not forfeit any of their rights as an executor – meaning that they can still apply if they change their minds.

Essentially, it’s like stepping back from the Probate application to allow the other executor(s) to apply for Probate and administer the deceased’s estate, without losing or formally renouncing your rights. Other information to take note of in this situation is:

  • In a ‘leave reserved’ application, the executors who apply for Probate are the Proving Executors whilst the executors not applying are the Non-Proving Executors.
  • The Supreme Court in each state has its own rules around what is required for a ‘leave reserved’ application.

3 The Executors are unable or unwilling to apply for Probate

There are situations where executors named in the Will are unable or unwilling to apply for Probate.

  • Unable: They have died or have lost mental and/or physical capacity.
  • Unwilling: The executor doesn’t want the responsibility of applying for Probate and administering the deceased estate.

What happens in this situation depends on whether there have been substituted executors named in the Will, and the wording used in the Will outlining when they can step in and apply.

There are two types of executors named in a Will:

  • Instituted executors: The primary executors named in a Will
  • Substituted executors: Executors that step in under specific situations – usually where the instituted executors are unable or willing to apply (see above).

Not all Wills name substituted executors, and where they do, the substituted executor clause must be read carefully to clarify when they can step in. In most cases, the instituted executor has died before the testator (person who made the Will). In other cases, the instituted executor may have lost mental capacity or has refused to apply for Probate. If the Will has covered for these conditions, the substituted executor can step in.

Evidence of the incapacity or renunciation of the instituted executors must always be supplied in the Probate application. Sometimes, proof of death of an instituted executor is also required – but not in every state.

Where the instituted executors cannot, or will not, apply for Probate and there are no substituted executors named in the Will (or those that are named cannot, or will not, apply for Probate), an application for Letters of Administration with the Will annexed can be made. This is usually made by the beneficiary with the largest interest in the estate.

If you are a substituted executor and need more information on whether you can apply for Probate, contact Probate Consultants for a Free Probate Assessment today.

4 The Will has not been signed at the bottom of every page

A Will should be signed by the person who made the Will (the testator) and two witnesses at the bottom of each page, as well as at the end, where the attestation clause appears.

The attestation clause is normally worded in the following way:

The testator signed in the presence of both of us being present at the same time, and we attested their signature in the presence of them and of each other.

At Probate Consultants, we frequently see Wills – especially home Will kits and Wills made from internet templates – that aren’t signed at the bottom of every page. Whilst not a major problem, it does cause issues for the Probate application and must be addressed by way of an Affidavit of Due Execution sworn by one of the witnesses to the Will.

This Affidavit confirms that the Will being submitted for Probate was the Will signed by the testator in the presence of the witnesses on the date specified. If an Affidavit is not lodged with the application, the Court will issue a Requisition and ask for evidence.

5 The deceased was known by multiple names

When dealing with a deceased person’s estate, many executors notice that they were known by a variety of names and that different names appear on different documents. Names are the foundation of Probate applications because the application largely deals with the identity of the deceased person.

Where the deceased had different names, this must be addressed in the Probate application to ensure that the Court grants the application and that once Probate is granted, the executors can deal with all the assets in the estate.

If Probate is granted in the deceased’s true and correct name but does not include the names that they owned assets in (these are known as aliases), then the asset holder may deny access to the assets.


Probate Consultants Tip

Executors should check the spelling of names on every document carefully and note all differences – even where it is a minor spelling mistake. Any name differences must be specifically addressed in the Probate application and reconciled for the Court.

6 Choosing how to apply for Probate

There are four main ways to apply for a Grant of Probate:

  • Prepare the application yourself
  • Engage Probate Consultants to assist with your application
  • Instruct a solicitor to act on your behalf
  • Authorise a Trustee Company to act as the executor or administrator

It is important that executors find a way to apply for Probate that is best suited to their specific needs and circumstances. Where there are multiple executors, it is important everyone is on the same page and that each is comfortable with the way Probate is being applied for.

Finding the right service depends upon several factors:

  • Your legal and commercial knowledge
  • Time and budget
  • The complexity of the Probate application
    1. Is the Will set up in a straightforward way?
    2. Is it easy to identify the beneficiaries and calculate what each of them is entitled to?
    3. Are the executors all in agreement and on good terms?
    4. Are there any potential challenges to the Will?
  • The complexity of the estate
    1. Is it easy to identify and deal with the assets of the estate?
    2. Do you understand how the estate is set up and what is required to administer it correctly once Probate is granted?

Solicitors are a great option when you have a complex Probate application and need assistance in administering the estate.

If you have experience in dealing with legal documents such as Affidavits, understand how to adhere to Court procedures and have the time to spend on learning about the Probate application process, then applying yourself can be a cost-effective option.

Where Probate applications are straightforward and legal advice is not required, Probate Consultants are the preferred option for many executors in Australia. This is because we are the Probate experts who have made obtaining Probate fast, affordable & easy. Probate Consultants also offer the guaranteed fastest approval times in the industry – meaning no unnecessary delays and complications. To avoid hidden, surprise costs, we also offer affordable, fixed-fee quotes that include:

  • Our Fixed-Fee: $995+ GST
  • Advertisement Fee (VIC, NSW, QLD, ACT)
  • Supreme Court Filing Fee
  • Postage

Read our article Why choose Probate Consultants instead of Probate Lawyers’ for more information about why our service is the best option for many Australian executors needing Probate.

7 The Probate application was not advertised correctly

In Victoria, New South Wales, Queensland, Tasmania, Australian Capital Territory and the Northern Territory executors must advertise their intention to apply for Probate for 14 clear days before the application can be lodged with the Court. This advertisement notifies the public that you are applying for Probate and serves many purposes, including allowing any interested party the opportunity to block the application through a Caveat. It also provides information for creditors to contact the executor to advise of any debts they are owed by the estate.

The advertisement plays an important role in the Probate application process and must be completed accurately and correctly before the court will review the Probate application.

It must accurately address the following:

  • Which executors are applying for Probate?
  • Which executors are not applying for Probate and why?
  • Why any instituted executors are not applying, and whether substituted executors are applying instead?
  • All name differences for executors as well as the testator.
  • Provide information of any codicils (formal documents amending the original Will).

If the advertisement is not published correctly, the Court will request that you re-publish with the correct information. In this case, you will have to wait another 14 days before the application is reviewed.

If you are looking for assistance with your Probate application, contact Probate Consultants today for a Free Consultation.

8 A Caveat is lodged

A Probate Caveat is lodged where a party intends to challenge to a Will and effectively blocks an application for a Grant of Probate. It can be lodged at any time after the deceased’s death and expires after 6 months unless it is first removed.

If a Caveat is lodged when you are applying for Probate, or you are notified that a Caveat has already been lodged, you will need to seek legal advice. Probate will not be granted until the Caveat is removed by the person who lodged Caveat, or it has expired.

9 A requisition is raised

Once your Probate Application is lodged with the Court, it will be reviewed within the specified time – usually between 5 and 30 days depending on the State you have applied in.

If the Court finds an issue with the application, it will issue a Requisition. This is a formal request for information required before the Court will grant Probate. The answers to the Requisition must often be provided by way of Affidavit evidence.

Common forms of Requisitions are:

  • The Will has not been signed correctly, and an Affidavit of Due Execution is required
  • The Will was translated and evidence of that translation must be provided
  • The Will was signed during a period that the deceased was suffering from Alzheimer’s or Dementia, and testamentary capacity must be proved by obtaining evidence from the deceased’s treating doctor
  • The Testator signed the Will a few days before passing, and testamentary capacity must be proved
  • The advertisement was not published correctly
  • There are staple marks on the original Will, indicating that the original binding of the Will has been removed.

10 Testamentary capacity must be proved to the court

Testamentary Capacity refers to the mental capacity of the deceased when they wrote their last Will and Testament. A Will is not valid unless the person making the Will is of sound mind, memory and understanding.

It is assumed that the testator is of sound mental capacity unless evidence is presented to disprove this. This evidence may be provided by family members or other interested parties who are challenging the validity of a Will being submitted for Probate. Even if the Will is not being challenged, the Court may request that testamentary capacity be proved prior to granting Probate where the deceased was suffering from Alzheimer’s or Dementia when the Will was made, or where they signed the Will shortly before their death.

Testamentary Capacity can be challenged on the basis of medical conditions such as:

  • Dementia
  • Alzheimer’s
  • Psychosis
  • Personality disorders
  • Alcohol-related mental illness

It is not automatically assumed by the Court that a person suffering from a medical condition that affects the mind lacked Testamentary Capacity. Medical assessment and opinion are crucial to determine whether the condition affected the deceased’s judgment, insight, and decision-making capabilities at the time of making their Will.

Often, Wills are contested on the grounds of Testamentary Capacity where family or friends of the deceased believe that the Will does not reflect their true intentions. This can happen when:

  • The deceased was very ill when they sign the Will
  • The deceased signed a new Will shortly before their death
  • The deceased was relying on others to care for them at the time of signing
  • The deceased was removed from loved ones or family when they created the Will 

Call 1300 561 803 for a Free Consultation today or Book a time for a Call-Back. There is no timer and never any obligations. We will provide you with all the information you need to make the right choice for you and your family.

Summary

Probate Consultants assess the needs of each individual client to offer a bespoke service and provide an experience where you feel heard and understood. We complete applications in just 24 hours and guarantee the fastest Probate approval times in the industry.

If you have any questions about applying for Probate or Letters of Administration, contact us today.

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