VIC Probate - Confusion with Husband's Will and Mother-in-Law's Will

[Gstone]

Good morning.

I would like some clarification please.

On June 2015, my husband's mother passed, leaving a will. Both her children were joint executors of will and beneficiaries. Probate has been granted but the distribution is not complete. Unexpectedly, my husband, one of the executors and beneficiaries in his mother's will, has passed in late November 2015 leaving a current will.

My mother-in-law's estate is NSW and my husband and I made our wills in Victoria, where we live.

The estate solicitor for my mother-in-law has said I will need to get probate on my husband's will...Our wills read that we both left to each other, etc., with proviso for our children, etc. should either not survive. Surely I will not need to sell our home and collect all assets to form probate for my late husband.

I am confused. Is he asking me to prove his last will and testament? If so, what does this involve and will it cost me a lot of money? I would have thought a notice of death, current and a valid will would suffice for distribution.

What purpose is a last will and testament if it is not recognized or accepted as such? The estate solicitor said my husband could have made another will after his last will with different instructions. What does the process of probate of my husband's will invole?

At this difficult and sad time, I really do not need another complication.

I would appreciate your help.

Kind regards.

 

[James D. Ford - Solicitor]

Hi Gstone

I understand it is a difficult and sad time.

Normally, "Probate will always be necessary if the deceased died owning real estate, except if it is owned as joint tenants."

You will need to look at the title to your Property to determine whether it is held as "joint tenants" or "tenants in common". Normally, a married couple will hold their home as joint tenants, which means that whoever survives automatically inherits the others share of the Property.. regardless of what the Will states.

Generally, when an estate is very small (less than $15,000) and uncomplicated, or when all assets are held as joint tenancies, there is no need to obtain probate or letters of administration. The need for a grant of probate also depends on the form in which the assets are held. Some asset holders (banks, executors of a relative's Will.. etc.) will require you to produce a grant of probate before they will release assets above a certain value.

The lawyer (estate solicitor), by requiring that Probate be granted.. is protecting themselves (and the Executors of your Mother in laws estate), ensuring that the distribution they make is to the correct beneficiaries... pursuant to the last Will... this protects themselves from liability at some later stage... if a later Will is discovered, etc.

How much money is due to be distributed from your Mother-in-law's estate?

Kind regards