A different article describes the making of a Will, and probate is almost a continuation of that. The testator writes the Will but it is the executor who puts it into motion. It is the testator who is called upon to interpret the instructions and make them work.
Look at the process as though it is referring to a motor car! The manufacturing plant has guide lines and instructions for building the vehicle correctly but they then place a guide book inside the glove box to inform the new owner as to how the car should be operated.
What powers and responsibilities does the executor assume? Can he countermand some instructions within the Will? Does the executor need to carry out all the duties personally or can he subcontract some, or indeed all, of the duties to a solicitor?
A Will can be correctly and legally written and yet leave a difficult job for the executor.
In Australia, an executor does not have to be a professional – he/she can be a family member or a friend - and appointing either of these can save many thousands of dollars of legal fees for the estate and reduce the time frame by half. It is only fair then that the tasks be made as easy as possible by simplifying many of the duties.
A lot of Australian legislation is based on the British legal system but between the Australian States there are differences. They may be slight but they exist and using the forms of one State is not acceptable to other States. If using a professional, choose one who is resident in the State where the deceased normally resided. It will be much quicker, less stressful and less expensive.
Some differences are that in some States, Probate need not be sought until an asset holder insists on it. Other States require Probate to be granted every time, while within certain States, an estate below a determined figure does not need a grant. The lesson here is that you should always choose a solicitor in the State where the deceased resided.
With knowledge of the Probate procedures the testator can perhaps be influenced to shape his wishes so that an asset does not need to be liquidated, or clearly identify where assets are stored, or make the splitting up of real estate easier by listing Title reference.
The ideal situation is to provide lists, guides or addresses to the executor, or make them automatically available to the executor at the time of death. Some of the funeral houses will provide such a record free of charge, see: www.newhavenfunerals.com.au
Professionals can charge about 6% of the value of the estate which can be a lot to pay, however, kits are available which clearly describe the various tasks and how to handle them. The executor may decide that certain responsibilities are best handled by a solicitor but he can then obtain a definite price for just those tasks and so keep costs under control.
By Fred Sparrow,
Legal Kit Specialists
www.legalkitspecialists.com.au