Probate, Executors & Estate Administration — Done Properly.

Probate is the court process that confirms the validity of a will and authorises the executor to administer the estate. It is generally required where the estate holds real property, significant financial assets, or where an institution holding assets requires a probate grant before releasing funds. Letters of administration are sought instead where there is no will (intestacy), or where the named executor is unable or unwilling to act. Both applications are made to the Supreme Court in the relevant state. Some small estates may be able to be administered without a court grant.

In NSW, probate applications are made to the NSW Supreme Court under the Probate and Administration Act 1898 and the Succession Act 2006. The application requires an affidavit of executor, an inventory of assets and liabilities, and the original will. In Victoria, applications are made under the Administration and Probate Act 1958. In Queensland, under the Succession Act 1981. In WA, SA, TAS, ACT, and NT, similar processes apply under the relevant state legislation. Many courts now accept online applications. A probate lawyer can prepare all documents and liaise with the court on your behalf.

An executor's core duties include: collecting and safeguarding estate assets; notifying and paying creditors; lodging a final tax return for the deceased and an estate tax return if required; obtaining probate; and distributing the estate to beneficiaries in accordance with the will. The executor is expected to act with reasonable care and skill, keep proper accounts, avoid conflicts of interest, and generally complete administration within 12 months of the date of death (the executor's year). Beneficiaries are entitled to receive accounts showing all assets, debts, and distributions, and can seek court intervention if the executor fails in their duties.

An application to pass over or remove an executor is made to the Supreme Court under the applicable state Probate Act or Administration and Probate Act. The court can remove an executor for misconduct, conflict of interest, incapacity, unreasonable delay in administering the estate, or failure to account. In some cases it may be possible to have a substitute executor appointed, or for the Public Trustee to take over the administration. The threshold for removal is not trivial — the court requires evidence of actual misconduct or incapacity, not mere disagreement between family members. A lawyer can advise on whether the circumstances justify an application.

Residuary beneficiaries (those who share in the remainder of the estate after specific gifts and debts are satisfied) have an equitable right to receive accounts from the executor showing all assets, debts, expenses, and distributions. They are also entitled to a copy of the will. Specific legatees (those who are to receive a specific item or sum of money) have a more limited right to information, generally confined to confirmation that their specific gift will be honoured. An executor who refuses to provide accounts or a copy of the will on a reasonable request may be in breach of their fiduciary duty, and the court can order disclosure.

When a person dies without a valid will, they are said to die intestate. The distribution of their estate is governed by the intestacy provisions of the applicable state legislation: the Succession Act 2006 (NSW), the Administration and Probate Act 1958 (VIC), the Succession Act 1981 (QLD), the Administration Act 1903 (WA), and equivalent legislation in other states. Generally, the estate passes first to a spouse, then to children, and then to more distant relatives. De facto partners are entitled in most states. The Public Trustee can be appointed to administer an intestate estate if no suitable family member is available or willing to act. If you are a beneficiary of an intestate estate, a lawyer can advise on your entitlement.