If your loved one didn’t take the time to make prior plans, you’ll probably need to go through a legal procedure called probate to govern their inheritance after they pass away. First, You might be unsure who to contact, what is expected of you, or how the process operates in general, which can make it stressful and daunting. Additionally, many fallacies regarding probate in Australia can make things even more difficult.
1. All estates of the deceased need probate.
It is possible to skip probate in some estates. It will depend on several variables, including the location of the decedent’s death, if any assets were held solely in their name, the amount of those assets, and whether the owners of those assets need to go through the probate process. Almost always, assets like real estate or stock must be probated. Although most of the decedents’ estates require probate, we will try to avoid it for you.
2. Every Will must go through probate
No, not all wills require a probate process. Although the majority do, there are a few instances where wills and probate don’t need to go through the courts. For instance, you can avoid going through probate if you have a small estate, jointly held property, or assets in an irrevocable trust. Keep in mind that the probate laws vary from state to state.
When a will is probated, the courts ensure your assets are dispersed per your wishes. If you die without a Will or other estate planning documents, your estate will be subject to probate. Additional grounds for probate may exist if a beneficiary declines an inheritance, cannot be found, or if the Will hasn’t been updated in some time and a beneficiary predeceases the person who wrote the Will.
A Will might not need to go through the probate procedure and solicitors costs for probate in NSW if you practise sound estate planning and take specific, deliberate steps to prevent it. It will save time, stress, and expensive legal fees associated with the probate process. You can always create the appropriate Trusts or other mechanisms to quietly transfer your fortune after your demise if secrecy concerns you.
3. If you don’t have Will, the state will take away assets
Although uncommon, this is possible under specific conditions. If you pass away without leaving a will, a statutory formula established by the legislation of the State where you pass away will decide who gets your inheritance. This field of law is state-based. Hence, the formula changes over time and from location to location. In some Australian jurisdictions, the government may be entitled to your inheritance if you are not left behind by a spouse or child, depending on your family situation.
4. Probate is automatically avoided if a family trust is in place.
While trusts are a common estate planning instrument, not all assets are typically retained in one. Probate may still be necessary if any assets are owned solely by the dead. There are further methods to lessen the need for probate in Australia, depending on the needs and goals of each client. The property might be kept under a joint tenancy or with a beneficiary designated to avoid probate. Only property that is owned solely by the dead is subject to probate. Before creating or amending their estate plan, a person interested in adopting other techniques should speak with an experienced estate planning attorney because each option has drawbacks.
5. No one can challenge a will if one exists.
Unfortunately, dissatisfied beneficiaries cannot be stopped from challenging a Will. As you may have heard in the headlines, people may litigate almost anything in court. That only implies that they can attempt, not that they will succeed. Fraud, unreasonably strong influence, and incapacity are the legal bases for disputing a will. There are methods to reduce the likelihood of such a challenge being successful, and an expert lawyer with knowledge of estate planning can assist.
6. The house or other estate property won’t be able to be advertised for sale for several months.
It may not take months or years to sell a residence that is part of a probate estate. After the Executor is named, the house can be put on the market immediately, usually within 45 days. Any contract for sale, however, must state that it is “subject to probate” since no one will have the legal right to manage the decedent’s assets until probate is granted.
7. Obtaining probate and distributing the estate to the beneficiaries will take years.
Obtaining probate takes 8 to 16 weeks, on average, not years. Although disputes and litigation amongst beneficiaries are much less common during the probate stage, it is occasionally possible for the administration of a deceased estate to stay open for years. In other words, disagreements between those interested in the estate, not the probate procedure or solicitors costs for probate in NSW, lead to excessive delay.
8. Immediately upon the decedent’s passing, an executor may distribute the decedent’s assets.
No one may depend on any document as genuinely being the deceased’s testament until probate in Australia has been granted. There’s still a chance that another (later) may surface before then. The foolish executor who made the distributions will be personally accountable to replenish the assets if they were paid following the erroneous Will. It’s important to locate and assess the assets of a dead person’s estate. An evaluation may be required sometimes. The executor is also responsible for paying death taxes, last expenditures, and the decedent’s debts. The executor risks running out of money if they transfer assets too soon.
In conclusion,
Dispelling common probate myths is essential for a clear understanding of the process. Acknowledging that probate isn’t always burdensome, expensive, or solely for the wealthy ensures informed decision-making. Individuals can navigate probate more confidently by hiring Probate Consultants and recognising the necessity of estate planning and the benefits of legal guidance. Understanding the regional variations and seeking accurate information from professionals helps alleviate unnecessary concerns. Ultimately, debunking these myths empowers individuals to approach probate pragmatically, securing their assets’ seamless transfer and preserving their legacy while minimising stress and confusion.
