So someone you care about is now gone forever. You are grieving and left with their assets to deal with. Selling a home when probate is required is not easy– I know, I’ve been there.  There are all the practicalities and the emotions. If they have assets of “significance”, probate will need to occur.  This will need to be organised and applied for by the executor of the estate.  Usually you need a lawyer and there are many that deal with this. Prices and time frames vary depending on the assets, e.g. money in the bank, shares, and property.  It all needs to be accounted for.

 

Here is part of what Mouldens Solicitors have to say:

What Is Probate?

Probate is a document issued by a Court declaring that the Will of a deceased person has been proved and registered in the Court and that the executor named in the will has been given the authority to administer the estate.

Probate may be granted in either common form, which is usual, or solemn form which is when there is, or may be, a dispute as to the validity of the Will.

How Does An Executor Obtain A Grant Of Probate?

Probate is applied for by the executor swearing and filing in the Court the executor’s oath and an affidavit of assets and liabilities of the estate.

The executor’s oath gives details of the deceased and the executor, refers to the deceased’s last will and the executor swears that he or she will administer the estate properly.

The affidavit of assets and liabilities is exactly that, set out in an order strictly defined by rules. Its main purposes are to tell the court that there assets in the State so that the court can be satisfied that it has jurisdiction and to enable any interested person to obtain details of the deceased’s assets. It is not used to impose any probate duty or succession or death duty.

There is a fixed probate fee payable to the court for the probate application but it does not vary according to the value of the estate.

No death, estate, probate or succession taxes exist at present but Capital Gains Tax may be payable when there is a disposal of assets acquired from a deceased estate. The rules are very complex. The most important thing that can be done to help the executor deal with CGT problems is to maintain accurate records of the date and cost of various investments.

When Is Probate Necessary?

Probate is definitely necessary to deal with real estate solely (not jointly) owned by the deceased. It is usually required when the deceased owned shares or had other investments of a substantial nature.

The grant of probate is proof that the executor has power to deal with the deceased’s assets. The executor can then become registered as the legal owner of the assets. Although probate proves the executor’s title, the executor does not derive his or her title from the grant of probate but from the Will itself. That is why some organizations will allow an executor to deal with an asset of minimal value without having to obtain a grant of probate. Each organisation has different informal ideas about what is a minimal value. Some of them consider the value of the asset with their organisation while others make a judgement based on the total value of the estate. Either way the organisation will be concerned to be as helpful as possible while bearing in mind its own liability if it acts incorrectly as it would if it allowed the wrong person to deal with the deceased’s assets. To limit their liability most organisations would want some sort of indemnity, normally from the beneficiary, before allowing any asset to be dealt with informally.

Probate is also required if the executor wishes to institute an action in his representative character such as recovering a debt due to the deceased. Such proceedings cannot be issued until the executor’s title is proved by the grant of probate.

Letters of Administration

The court grants “probate” when the deceased leaves a will. If somebody dies without a will (intestate), the court grants “letters of administration” to one of the persons having a statutory entitlement to the deceased’s assets. This gives the administrator similar powers to administer or deal with the deceased’s assets.

In cases where a testator has made a Will but either failed to appoint an executor or the nominated executor has predeceased, then the Court will grant what is called “letters of administration with the Will annexed” to one of the beneficiaries named in the will. That person will have powers and duties similar to those of an executor.

Joint Property

Assets owned as “joint tenants” (but not as “tenants in common”) automatically pass to the survivor. Consequently, they do not form part of the deceased estate and probate is not required to deal with that sort of property. “

 

In my instance we had what was a family home, some money and shares.  It was the family home that needed to be sold and cleared.

This is where many people have contacted me to see if they should update, paint, renovate or sell as is. There is no need to wait until probate is over, some of this can be organised during the probate process. Also a property can be transacted by the Executor, subject to probated being granted. I have purchased some of these properties, others I have suggested they put on the open market. Others I have suggested they paint first, or do some other minor improvements to get the best value for the estate.

 

The traditional way to sell a home when probate is required, is through a real estate agent. Sometimes this gives everyone the best outcome, and sometimes it doesn’t.  If the property is a potential development or full renovation, tens of thousands of dollars can saved by selling direct to someone like me.

If I can be of help please feel free to contact me anytime and I do hope this has been helpful.

Robyn

0409 763 673