As an executor of an estate one of the first questions you will have is whether probate is required.
Obtaining Probate involves advertising your appointment as the executor of the will you hold and applying to the Supreme Court for a grant of probate.
You may then administer the will in the knowledge that you have the seal of the Court that the will that you are administering is the deceased’s last will.
The procedure for obtaining probate is however time-consuming and costly. It involves incurring legal fees, advertising fees and Court filing fees so you should carefully consider whether you require probate. This decision is dependent upon a number of considerations: –
- The assets of the estate. If administration of the estate will involve release of funds held in bank accounts or financial institutions above certain thresholds (usually around $50,000.00) the bank or financial institution will not release those funds to the executor unless a grant of probate is obtained. Similarly, if the will-maker held an interest in a retirement village or care-home, the retirement village or care-home will often not return the bond held by them until probate is obtained. This is to protect the interest of the institution releasing the funds as they may be held liable if they release the funds to someone who is not in fact entitled to administer the estate.
- The risk associated with administering an estate without a grant of probate. In some circumstances there is little risk in administering an estate without a grant of probate. Where the will-maker has had the same solicitor attend to their important affairs for a long period of time, kept their affairs in order and has a relatively modest estate, the risk of not obtaining Probate may be low. In those circumstances it is likely that the will held by the will-makers solicitor which is easily found among the will-maker’s important documentation will be the last will.
- The will-maker’s health at the time of the making the will or changes being made very close to the end of the will-maker’s life. These issues may cause doubt concerning the will-maker’s capacity to make the will and an application for a grant of probate provides protection to the executor.
- Claims against the estate by family members. If there is the potential for a challenge to a will by family members that have not been provided for in a will or provided for disproportionately, then probate of the will is recommended as part of the process of dealing with such claims.
It is important to note in making the decision as to whether to obtain Probate that executors are personally responsible for administration of the estate and should therefore always err on the side of caution when making decisions such as whether to obtain probate rather than expose themselves to the risk of liability.
If you are the executor of an estate or have any questions in relation to administration of an estate, our estate lawyers can assist you with any query that you may have.