Probate process explained

If you don’t know anything about the Probate process this is a simple explanation of the process.

Process following death

When a person dies the person appointed Executor by the Will is required to apply for a Grant of Probate. The Court has to be satisfied that:

  1. The person has died (done by producing the death certificate);
  2. The Will has been validly made; and
  3. The applicant has been named an Executor in the Will.

Unless a Court is fully satisfied Probate will not be granted.

In a way you can consider the Grant of Probate like the “Driver’s Licence”. The Grant is the ‘licence’ that gives the Executor to right to act as executor rather than the Will. After all a Will may be ruled invalid.

Process following Grant of Probate

Once Probate is granted the executor is able to ask those who owe the deceased money to pay up. This includes money in bank accounts held by the deceased, insurance policies, etc.

It’s the Grant that empowers the executor to deal with and sell real estate and shares of the deceased.

The executor can also start paying off the debts of the estate from the cash available to the executor.

Once all assets are converted to cash the executor can begin distributing the estate to the beneficiaries. However, a prudent executor will seek a Release or Discharge from a beneficiary before distributing the estate.

If a beneficiary is under 21 that person is unable to provide a Release under the law. This is what stops a child from receiving his/her inheritance even if the Will doesn’t say at what age a beneficiary is able to receive his/her inheritance. More information on this can be found in our next post.

Executor and trustee

Most Wills appoint the same person as both executor and trustee.

Where a Will includes a Testamentary Trust the persons named as executors and trustees may also be named Trustees of the Testamentary Trust.  But it is possible that different trustees may be appointed for the Testamentary Trust.

When a person dies there will be a lot of things that must be done by the executor and trustee of the will initially.

Once Probate is granted and assets are “called in” and all debts paid it leaves just the management of the estate assets and the distribution.

With a testamentary trust it could make sense for a Will to have a resident as executor and trustee.

The Will can then have non-residents as trustees of the testamentary trust. Management and distribution are tasks that are more easily managed by someone who may be living overseas than the initial process of being executor and trustee.

If a Will doesn’t have a Testamentary Trust you can still name one person as executor and another as trustee. However, it makes no sense to do this as the same person can be both executor and trustee.

This way he or she can have the whole estate managed, distributed and finalised within a relatively short period of time.

For this reason most Wills appoint the same person as both executor and trustee rather than one person as executor and another as Trustee.

29th January 2021





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