What is Probate - FAQs Australian Law
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This section contains frequently asked questions and a glossary of terms. Numerous question such as 'what is probate' are clearly answered in plain English without any legal jargon. The answer to the question 'what is Probate' is reduced to just a few words that fully explain the concept. We attempt to simplify the whole process of wills and probate.
What is a Will?
A Will is a written document that specifies who you want to receive your possessions after you die. Because it is such powerful a document, the law sets forth very strict requirements for what constitutes a valid Will. You can change your Will at any time and as many times as you want.
Why do I need a Will?
A Will ensures that your assets are distributed according to your wishes. Without a Will, the laws of intestacy are applied, and the outcome may not be what you wanted. Wills are not just for people with large estates. Everyone, no matter the value of their possessions, needs a Will to ensure that their belongings end up in the right hands. A valid Will also makes things easier for the ones you leave behind.
When should I make my Will?
As soon as possible. Every adult, regardless of their age or their amount of possessions, should have a Will. Life is full of unexpected events. Having a Will gives you peace of mind knowing that your wishes will be honored should the worst happen.
Who can make a Will?
Anyone can make a Will. Whilst there is no legal requirement that you write a Will, it is in your best interest, and the interests of your loved ones, to do so. Without a Will, there is no guarantee that your possessions Will be distributed the way you want them to be. By writing a Will, you ensure that your loved ones are provided for. Once you pass away, your Will is all that is left to speak to your intentions.
Can I choose the Executor?
Yes. The executor is the person who is responsible for managing your estate and distributing your possessions according to the instructions you set out in your Will. You can choose your executor by naming them in your Will. If you do not write a Will, or if you do not name an Executor in your will, an Administrator will be appointed to perform those duties.
What happens if I die without a Will?
A person who dies without a Will is said to have died intestate. If you die intestate, the laws of intestacy are applied to determine who will inherit from your estate and what the size of their inheritance will be. An administrator will be appointed to distribute your assets according to the laws of intestacy. If you do not have any relatives who qualify under these laws, the State may be able to claim your assets.
What is Probate?
Probate is the legal process of confirming that a will is valid. Following a determination by the authorities that the will is enforcable, a grant of probate is issued to confirm that the executor has legal authority to deal with the assets of the estate in accordance with the wishes of the deceased. If you want more information about 'what is probate' just click here for a detailed explanation.
What is Probate - Glossary
The person appointed by the court to manage your estate if you die without a Will. A person, usually a close friend or family member, applies to the Probate Registry for this position.
A person who receives something from the deceased's estate.
An amendment to a Will. Rather than write an entirely new Will, the testator can alter the will through a valid codicil.
Crown or Treasury or State
A general reference to the government. If you die intestate, or if your will is found invalid for any reason, there is a chance that the government can claim all or some of your assets.
The value of all your possessions (minus any outstanding debts and liabilities) at the time of your death.
The person or persons you appoint in your Will to manage your estate. Executor is used for males, executrix for females. Naming an executor in your Will makes the probate process much easier for your loved ones.
Instructions you provide indicating the type of funeral and burial you prefer.
A tax that is imposed on the deceased's estate if the value of the estate exceeds the current threshold. A solicitor can help you minimise the tax burden on your estate, ensuring that as much of your estate as possible goes to your beneficiaries.
The term used to describe the situation of a person dying without a Will.
A gift made to a person in the deceased's Will. Legacies include money, real property, personal property, periodic payments and, in some cases, gifts.
What is Probate? This is the legal process of determining whether a will is valid and enforceable.
The person making the Will; testator is used when the person is male, testatrix when female.
A legal entity into which assets are placed for the benefit of a third party (beneficiary). The trust is overseen by a trustee who is given instructions as to when and how the assets should be distributed to the beneficiary.
A person who signs the testator's Will in accordance with requirements set forth by the law. In order to be valid, a Will must be signed by two witnesses who observed the testator signing the Will. Those who are receiving something in your Will should not serve as witnesses or their gift will be void.
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