Probate is the process of presenting a will or other such document to the court after a person has died, and then handling their estate accordingly. If you're concerned about how probate might be handled for your own estate or for the estate of someone you know who has died, you would do well to speak to an attorney. However, note some commonly asked questions about the probate process in Australia as this might help you better understand what is involved and what to discuss with a probate lawyer.
1. What if a person didn't leave a valid will?
Family and anyone who feels they have a claim to a person's estate may make an application to the courts for what are called Letters of Administration. This can take the place of a will and allow the estate to be dispersed according to those Letters. There are no official forms to fill out to apply for these Letters, so it's good to have an attorney help you prepare your application and then present it to the court.
2. Can someone with power of attorney handle the probate process for a deceased person?
Power of attorney is granted to someone to have them make legal decisions for a person, including decisions as to their health care, financial matters, and the like. However, this power of attorney privilege stops as soon as a person dies, unless they've been granted what is called enduring power of attorney. The person who possessed this power of attorney does not have special privileges or rights when it comes to a person's will, unless they were also named executor of that will. If someone else was named executor of the will, that person's authority would supersede any authority that was held by anyone else before a person died.
3. Can just anyone see a copy of a will?
If you're the executor of a will, note that certain people do have the right to see the will. This would include anyone mentioned in the will, a person's spouse, the parent or guardian of a minor deceased person, and anyone who has enduring power of attorney. Creditors who may have a claim against the estate may also have rights to view the will. If you're an executor and it's been requested that someone see a copy of a will, you might check with an attorney as to their rights and your obligations in providing them a copy.