In many probate applications in Australia, there are variations from standard applications. The variations may be about the names of the testator or the names of the executors, or it may be that the appointed executor has predeceased the testator. To satisfy the Probate Registry and the Supreme Court, the variations must be addressed in the application.
First, please familiarize yourself with the basic terms below.
In a typical will, the testator appoints one or more people to be the executors. Those person(s) nominated are called ‘instituted executors.’
A properly written will should also appoint one or more persons as executors if the instituted executors are unable or unwilling or act. These persons are called “substituted executors.”
“I APPOINT as my executor and trustee Person 1 and Person 2. Unless unable or unwilling to act or continue to act in which event, I APPOINT Person 3 AND I DECLARE that the expression ‘my trustees’ when hereinafter used and where the context permits shall mean and include the executor or executors and trustee or trustees for the time being of my will whether original, surviving, substituted or additionally appointed, and I direct that providing one trustee remains other trustees may retire without being replaced.
A substituted executor can only apply if all the instituted executors are not applying. However, the reasons must be stated, including but not limited to:
The instituted executor(s) appointed in the will; or
One of the instituted executors appointed in the will (the other instituted executor, NAME, having predeceased the testator / the other instituted executor, NAME, having renounced probate); or
One of the instituted executors appointed in the will (the other instituted executor, NAME, having reserved leave to apply at a future date); or
The substituted executor appointed in the will, (the instituted executor(s) (NAME 1 and NAME 2) having predeceased the testator / one of the instituted executors, Name 1, having predeceased the testator, the other instituted executor NAME, having renounced probate).
There are many situations in probate applications in Australia where there are 2 executors appointed. However, it is impractical for both executors to make the application. Some examples are when they are living in different States or Territories. Thus, each executor has the right to place themselves in “reserve.” That means that they are not renouncing probate (irreversible renunciation of their rights to execute to estate), but they retain the right to make their own separate application at any time in the future. The process to accomplish this varies from State to State. However, the option remains for each executor. Please seek legal advice in this respect if you find yourself with this option.
It is becoming more and more common for the name that is recorded in the will to be different to the name recorded in the death certificate. On many occasions it is related to culture, an example being where the testator is on Chinese background where [what the west refers to as] the surname is recorded first. Also, it seems to be more and more common for persons to adopt western names by which they are commonly known. The western name is not a legally recorded name, but the name is an “alias”.
On occasion, the name of the testator is misspelled in the will, or very rarely, that the name recorded on the death certificate is recorded incorrectly.
In all such situations, the applicant is required to explain all such variations.
Where the correct name is recorded on the death certificate but the name in the will is different:
“The estate of TESTATOR, in the will called TESTATOR2” or
Where the correct name is recorded on the death certificate and the will, but there are assets in a different name. This is called an “alias”.
“The estate of TESTATOR, also known as TESTATOR 2”.
Please ask the institutions that hold the assets about the actual name of the account so that you may determine if the institution requires the alias to be recorded in the application.
In most cases, the will is admitted to probate successfully.
In some cases, the will may not be admitted to probate for technical reasons. This does not mean the will is invalid. It means that the application process needs to be varied.
One of the reasons that partial intestacy occurs is when instituted executors AND any substituted executors are not able or willing to carry out their duties.
The application process changes from applying for Probate to applying for Letters of Administration with the Will Annexed..
Typically, one or more of the beneficiaries named in the will is/are the persons entitled to apply for administration of the estate.
Letters of Administration with the Will dated DATE annexed, (the instituted executors, NAME 1 and NAME 2 having predeceased the testator / one of the instituted executors, NAME 1, having predeceased the testator, the other instated executor, NAME 2, having renounced probate, the substituted executor, NAME #, having renounced probate).
In all cases, the applicant must “clear off” all the persons who are entitled “in priority” to be the applicant. Clearing off means that the applicant must provide evidence for the reason why those persons are unable or unwilling to apply.
This typically means proving a certified copy of the death certificate of those who have predeceased the testator, or proving an original signed Renunciation of Probate form for those instituted or substituted executors who chose to renounce their rights to be an executor of the estate of the deceased.
We always recommend that you seek some preliminary advice about your options and the most appropriate course given your particular situation.
The variations are not something you should be concerned about. All variations can be accommodated. It is about the experience of the people assisting you with the process. It is also about not paying excessively for an application where the variations can be dealt with reasonably easily. Please do not pay more than you have to!
AussieLegal has been assisting people with probate and letters of administration application for over 20 years. We have successfully completed over 2,500 probate applications across all States and Territories in Australia. We offer a number of legal kits and paralegal services. This includes helping you with various probate applications in Australia and others that are specifically designed to help family members make a personal application and save thousands in legal fees.
Reach out on 1300 728 200 to discuss your situation with one of our consultants.
