This is a very stressful time when family wishes to be together and seek closure, rather than trying to deal with the legalities of someone’s passing.
When a loved one or family member passes away, then an application for the Court’s permission to distribute their estate is usually required. That permission comes in the form of a grant of:
- Probate (where the person has left a Will naming an executor)
- Letters of Administration with the Will annexed (where there is a Will but it does not name an executor)
- Letters of Administration (where there is no Will at all).
Each of these applications is done differently and Your LegalHQ specialises in applying for the appropriate grant for the case in hand.
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Give us the information and then leave it to us
It is an unfortunate fact that making these applications is a technical process and mistakes in the applications always cause delays.
If for any reason the Court thinks that the correct process has not or may not have been followed, then the Court issues official “requisitions” which require more letters, affidavits to be sworn, or both.
There is delay while these requisitions are dealt with. Then there is more delay while you wait for the Court to assess your response to the requisitions and decide if it will allow the application and give you the ability to deal with the estate.
Some of the issues which we have to deal with are:
- The document which is the “Will” being merely an informal note on a piece of paper which does not satisfy the usual requirements
- Wills being improperly executed
- Wills which show some evidence of damage or tampering
- Wills which have had documents clipped, pinned or stapled to them which causes the Court to issue requisitions
Important Fact:
The Court uses forensic document examination techniques to check every Will for pin holes, staple holes, bulldog clip marks and paperclip marks. If they find anything at all, there will normally be a requisition.
Never ever pull a Will apart to copy it, or attach anything to it.
Your LegalHQ has many years’ experience in dealing with the Court Probate Office and reducing the risk of requisitions by tailoring applications for grants to get around the problems which we usually spot when we take instructions from you the first time.
Dealing with the Estate after the Grant
When the Court has given you a grant of probate or letters of administration, you must then administer the estate.
That involves:
- getting in the assets (whether here or in other jurisdictions);
- negotiating with insurance companies;
- dealing with banks, whose policies on accounts held by people who pass away differ;
- paying creditors;
- dealing with creditors who have caveats over the title to land in the estate;
- liaising with the beneficiaries; and
- refereeing (where permissible) in disputes between beneficiaries.
You can do all this yourself, or you can leave it with us.
We are happy to deal with these issues for you and save you the stress and headaches which are often involved in administration of estates
The person who is the executor or administrator is often quite relieved to be able to tell troublesome members of the family that “it’s being handled by the lawyers” rather try and engage with the family issues that often emerge at times like this.
Two other things you need to know
There are two situations which we deal with from time to time and we want you to know that if you’re in one of these situations, we want to help you deal with it.
1) Missing Beneficiaries
These cases often come up where there is no Will at all. If there is no Will it can sometimes mean that there is a large pool of beneficiaries (all the cousins, for example) who will inherit.
But what about the family’s “black sheep”? That person who might be alive, might have passed away, could be in jail and was last heard of 30 years ago. But no-one in the family has the faintest idea where they are, or how to contact them.
Your LegalHQ has made a number of applications to the Court about missing beneficiaries.
The existence of the missing beneficiary is always a complicating factor. The Court can decide that their interests can be ignored so the estate can be distributed, but (as you might expect) there are strict rules which need to be complied with before the Court will do that.
2) Your Risk as an Executor is HIGH in the following situations
As a firm which specialises in Wills, Probate and estate administration, we come across situations which the executors of estate simply cannot deal with by themselves. And they should never deal with them by themselves. There is substantial personal liability if you get it wrong.
Some of those situations are:
- Where there are two or more Wills in effect. This can happen when Wills are made without the most recent Will revoking the old Wills. What will you do as executor if the multiple wills contradict each other?
- Where there is a possibility that the Will maker actually did not have legal capacity to make the Will when they did. If you distribute the estate under an invalid Will your personal risk is extreme.
- Where there might be other, Wills which the executor cannot find. If you distribute the estate under the wrong Will, your personal risk is extreme.
As an executor, you have to have advice about these situations.
If you take the wrong step, or make a mistake, you can be personally liable for any loss suffered by a beneficiary as a result. If the estate is substantial, then your personal risk is equally substantial.
These sorts of situations all require a specialised form of application to the Court, for your protection. We will prepare that application for you. We will also attend before the judge and make submissions about how the problem should be handled – whatever it might be.
If done properly, and you obtain the right orders from the Court, then you are 100% protected from liability to the beneficiaries.
Your LegalHQ is able to guide you through this process so that you do not have to take on the very real risks that these situations – and ones like them – pose for you.
