Probate Caveat and Injunctions – Will Solicitor – Australia Law

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The probate caveat is a means to suspend or temporarily stop or suspend the issue of a Grant of Letters of Administration or a Grant of Probate from the High Court. After issuance, a probate caveat will give an interested party sufficient time for investigation and when relevant take lawful steps to impede another person that might try to unlawfully gain a grant of representation that could allow wrongful disposition of the assets of the deceased.

A person might make application for a probate caveat pertaining to whether or not a will is valid, because of undue influence in the creation of a will, fraudulent matters, questions arising regarding anticipated asset liquidation, as well as possible identity theft regarding the applicant, which might invalidate their entitlement as beneficiary, executor or administrator and make issuing a grant of representation unlawful.

Probate Caveat Procedure

The High Court can issue a probate caveat once an application form has been submitted to them by a “caveator”. The application must be fully backed up by appropriate information and payment of court fees. Once approved, a grant of representation will not be issued, without further consideration by the court which requires that a notice be given any interested parties. A caveat will remain in place for a minimum of six months, which can be extended or renewed by the submission of another application.

Contested Probate

Once a caveat is in place, any individual who makes an application to the court will be stopped and a “warning notice” will then be sent by the court to the caveator, requiring further action, known as an ‘appearance’ of the caveator within a period of eight days. If an appearance is not made the caveat will expire and the Grant of representation process may continue. Once the appearance is entered, a caveat stays in force until resolutions of any issues takes place in the court. A caveator can however release the caveat if a resolution of these disputed probate matters is reached.

Grant of Probate

The High Court in Australia issues the “Grant of Probate”, which authorises up to 4 named individuals(s) to carry out the wishes of the deceased. These individuals are appointed by the deceased person’s will to administer assets from the estate and are they formally known as the executors. Their responsibility is to assemble and often liquidate estate assets and reallocate those assets to the estate’s beneficiaries after paying any outstanding debts, taxes or other liabilities.
In the event the deceased did not name an executor in the will, the High Court cannot by law provide a Grant of Probate but must issue a Grant of Letters of Administration naming an administrator instead.

Generally, assets of a deceased person, not specifically allocated by the deceased, are sold or liquidated as authorised by law or the will. Any cash received from these sales is then deposited in the trustee account or a solicitor’s designated client account to resolve taxes and debts and then eventually made available for distribution to beneficiaries as outlined or approved by the will.

The legal authority of an executor or administrator is determined by the content of the will or by the Rules of Intestacy. Executors are held personally accountable for any financial loss sustained by beneficiaries. A Grant of Probate furnishes proof to third parties, who hold any assets that belonged to the deceased that they have the legal authorisation derived from the will to claim assets for the estate of the deceased.

Ordinarily, third parties holding assets do not automatically observe the executor’s request, nor relinquish control of assets until an executor proves authorisation by showing the court issued Grant of Probate or a sealed copy from a Probate office. When very small amounts of money are held by individuals or organisations, in most cases the executor will not be required to provide the Grant of Probate, most will simply release the money after seeing the will, upon request by a spouse or another next of kin.
The Grant of Probate is not a requirement in most cases of jointly owned assets including real property, the ownership is passed immediately and automatically to the other joint owner or owners upon death.

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