When a loved one passes, the assets that they leave behind form their estate. In order for the deceased Party’s assets to be distributed to the intended surviving family members and friends, their estate must be administered.

The administration of a deceased Party’s estate will require applying to the Family Courts for a Grant of Probate or Grant of Letters of Administration. The exact legal application to be lodged will depend on whether the deceased Party has made a Will. In this article, we will look at these two Court Applications in finer detail.

The Impact of a Will

Where the deceased Party has made a valid Will, the same Will should contain a clause appointing an executor. The individual(s) appointed as executor will then have to distribute the estate in accordance with the deceased Party’s instructions. This may involve an application to the Family Courts for a Grant of Probate.

The deceased Party’s next-of-kin will have to instead apply to the Family Courts for a Grant of Letters of Administration in any of the following situations:

•  If the deceased Party did not make a Will;
•  If the deceased Party had made a Will, but it cannot be found; or
•  If the deceased Party’s Will does not appoint or specify an executor.

Grant of Probate

Where the value of the deceased Party’s estate is above $50,000, the executor of the Will is required to apply for a Grant of Probate. If the deceased Party’s estate is valued at less than $50,000, the executor may be able to apply for the Public Trustee to administer the estate.

The steps involved in applying for a Grant of Probate are outlined as follows:

• The executor must file the Application for Probate on eLitigation.

1. This must be done within 6 months from the date of the deceased Party’s passing. Otherwise, reasons for the delay must be specified in the application form.
2.  For estates valued under $5,000,000, the application must be filed with the Family Courts. If the estate is valued above $5,000,000, the application must be filed with the Family Division of the High Court.

•  The Application for Probate must be submitted alongside the following documents:

1. Schedule of Assets;
2. Original copy of the deceased Party’s Will;
3.  A certified true copy of the deceased Party’s death certificate;
4.  Summary report of the Family Courts’ record of probate cases and caveats filed in relation to the estate; and
5. Renunciation of other executors (if applicable).

•  After filing the Application for Probate, a Supporting Affidavit and Administration Oath must be submitted within 14 days.
• If the application is in order, the Family Courts will accept the documents and set the matter for hearing. If there are no issues, the Family Courts will issue the Grant of Probate, which legally recognises the applicant as the executor of the deceased Party’s estate.

Grant of Letters of Administration
Where the value of the deceased Party’s estate is above $50,000, the beneficiary of the estate is required to apply for a Grant of Probate. If the deceased Party’s estate is valued at less than $50,000, the beneficiary may be able to apply for the Public Trustee to administer the estate.
Only beneficiaries of the estate may apply for a Grant of Letters of Administration. In order of priority, the following classes of persons related to the deceased Party are entitled to apply:

• the spouse;
• the children;
• the parents;
• brothers and sisters;
• nephews and nieces;
• grandparents; and
• uncles and aunts

The beneficiary applying for the Grant of Letters of Administration must be at least 21 years of age and not lacking in mental capacity.

The steps involved in applying for a Grant of Letters of Administration are identical to an application for a Grant of Probate (as above). If the documentation is in good order, the Family Courts will issue a Grant of Letters of Administration, which legally recognises the applicant as the administrator of the deceased Party’s estate.

Contested Probate Proceedings
In the event that any of the beneficiaries to the Will is of the view that it does not accurately reflect the deceased Party’s last wishes, they may elect to contest the same.
Some of the grounds that one can rely on to contest a Will include:

• the Will does not comply with the legal requirements;
•  the deceased Party had signed the Will under undue influence or had been fraudulently induced into doing so;
•  the deceased Party lacked the mental capacity to make the Will;
•  the solicitor(s) who had drafted the Will had made a mistake in it.

In the event an individual wishes to contest a Will before a Grant of Probate has been issued, they should file a caveat to declare their interest in the estate.

Should the Family Courts have already issued the Grant of Probate, the individual seeking to contest the Will may file a Writ to commence an action for the revocation of a Grant of Probate. A Writ can also be filed to commence an action for the revocation of a Grant of Letters of Administration.

Engaging a Probate Lawyer
In times of heightened stress and emotional strain upon a loved one’s death, seeking the assistance of a knowledgeable Probate Lawyer is recommended. This is especially important for estates with complex arrangements, or in the absence of a Will. Should any contentious matters arise, your Probate Lawyer can also help advise you on possible options to resolve disputes. A good Probate Lawyer would be able to render professional support and guide you through the legal procedures of probate.