Probate is the process of finalising the deceased assets and financial debts in order to distribute them to the beneficiaries as per their Will, or where there is no Will, the court will grant letters of administration to the person who applies to step in as Executor.
The Executor needs to sell the assets and pay the deceased person’s debts, and transfer the remaining assets to the people who are entitled to them, or the beneficiaries as per the Will. Where the Executor has to pay from his own money, the funds will be returned to him prior to distributing to the beneficiaries.
Where there is a spouse, they generally receive 100% of the estate (subject to the Will). This is a much simpler process and does not take long to transfer the assets into the spouses name.
Where there is no spouse, process may take many months and is a lot of work for an Executor, especially if there are multiple assets. They need to pay the debts, prepare the assets for sale and sell the assets, comply with any tax obligations and then finally distribute the assets.
Testators Family Maintenance
When a families provision in the Will is considered inadequate, they can make a Testators Family Maintenance claims or Part IV claim. This is made to the court as a result of a disputed Probate with respect to the provisions made under the Will where a party feels that the assets are unfairly distributed. The applicant must show that:
The deceased had a moral obligation to make adequate provision for the applicant in the Will, and
The Will was inadequate having no regard for the applicants financial needs and resources.
There are many factors that are taken into account by the court when making their decision, including intent of the Will, the party making the claim and if there is any evidence of the reasons for the distribution, to name a few.
We will assess your position and ascertain your likely success, in certain circumstances, obtaining specialist barristers opinion to avoid unwarranted costs.