Know the Law: Probate

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When a person dies, someone has to deal with the affairs of the deceased. This person(s) is either named in the Will or is usually the next of kin if there is no valid Will.

This person is legally responsible for collecting any money, paying any debts and correctly distributing the estate to those people entitled: the “beneficiaries”.

This whole process is called “administration of the estate” and part of the process may involve making an application to the court.

A “Grant of Probate” is the official court document issued by the Probate Registry that includes a copy of the deceased's Will.

It is called a “Grant of Letters of Administration” if there is no Will, but the document serves the same purpose.

Such a Grant is often required before banks will release large sums of money, or before any property can be sold. The Grant is confirmation of legal authority, therefore ensuring funds are released to the correct person.

Whether obtaining a Grant is necessary at all, is dependent on the value and nature of assets that are held in the deceased’s sole name. You may have to make an application for a Grant, regardless of whether the deceased left a Will or not.

Dealing with an estate involves a series of legal and administrative activities, such as contacting financial institutions, paying any debts owed, closing bank accounts, and dealing with any legal work in obtaining the relevant Grant.

If the deceased has left a valid Will, it is the responsibility of the “Executor” to distribute the estate in accordance with the terms of the Will, after all the administrative requirements have been met.

If the deceased died without leaving a Will, there is a set legal formula for distributing assets to beneficiaries, which is called the “rules of intestacy.” The “Legal Personal Representative (LPR)” of the deceased must distribute the estate according to these rules.

The role of the Executor or LPR is one that may involve a lot of work, spanning months and even years, depending on the nature of the estate.

If an Executor or LPR refuses to administer an estate, the law provides procedures for beneficiaries to assume this role.

The information provided here is not intended to give legal advice. Should you require legal representation or advice, please consult an attorney-at-law.

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