Checklist for Probate, Letters of Administration, Reseal of Foreign Grant Applications

Contents

Application for a Grant of Probate

Application for Letters of Administration with Will Annexed

Application for Letters of Administration with no Will

Application for a Reseal of Foreign Grant

Common Errors to Avoid

If not all Executors Named in the Will Applying
Original Will
Grant of Probate
Persons' Names
Value of the Estate / Property
General

This list has been prepared for legal practitioners and litigants in person who intend applying for a grant of probate/letters of administration. It comprises many of the most common reasons for rejection of documentation in such applications.

As the applicant, you are responsible for ensuring that all your paperwork is in order.  Although the Court’s registry staff can check your forms for general compliance with rules relating to the filing of court documents, and may give you information about the Court’s procedures, they cannot give you legal advice and they are not responsible for the accuracy or completeness of your documents.

Application for a Grant of Probate

Documents to be filed:

Form 3.1 – Originating application – probate
Form 3.4 – Grant of probate (in duplicate with a copy of the will attached to each)
Form 3.11 – Affidavit of applicant for probate
Form 3.14 – Affidavit of search
Original Will

Form 3.7 – Notice of intention to apply for probate – is required to be published in a daily newspaper circulating generally in the ACT, not less than 14 days and not more than 3 months, before the day the application is filed in Court.

Other forms that may be required:

Form 3.15 – Renunciation of probate (see rule 3014 from volume 2 of Court Procedures Rules 2006)

Application for Letters of Administration with Will Annexed

Documents to be filed:

Form 3.2 – Originating application – letters of administration – with will
Form 3.5 – Grant of letters of administration – with will (in duplicate with a copy of the will attached to each)
Form 3.12 – Affidavit of applicant for administration – with will
Form 3.14 – Affidavit of search
Original Will

Form 3.8 – Notice of intention to apply for letters of administration – with will – is required to be published in a daily newspaper circulating generally in the ACT, not less than 14 days and not more than 3 months, before the day the application is filed in Court.

Other forms that may be required:

Form 3.15 – Renunciation of probate (see rule 3014 from volume 2 of Court Procedures Rules 2006)

Application for Letters of Administration with no Will

Documents to be filed:

Form 3.3 – Originating application – letters of administration – no will
Form 3.6 – Grant of letters of administration – no will (in duplicate)
Form 3.13 – Affidavit of applicant for administration – no will
Form 3.14 – Affidavit of search

Form 3.9 – Notice of intention to apply for letters of administration – no will – is required to be published in a daily newspaper circulating generally in the ACT, not less than 14 days and not more than 3 months, before the day the application is filed in Court.

Other forms that may be required:

Form 3.10 – Consent to administration of estate (see rules 3007 and 3008 from volume 2 of Court Procedures Rules 2006)
Form 3.21 – Administration bond (see rule 3045)
Form 3.22 – Affidavit of justification (see rule 3047)

Application for a Reseal of Foreign Grant

Documents to be filed:

Form 3.16 – Originating application – reseal of foreign grant
Form 3.17 – Reseal of foreign grant (in duplicate with a copy of the foreign grant annexed to each)
Form 3.19 – Affidavit of applicant for reseal of foreign grant
Form 3.20 – Affidavit of search - reseal of foreign grant
Original foreign grant

Form 3.18 – Notice of intention to apply for reseal of foreign grant – is required to be published in a daily newspaper circulating generally in the ACT, not less than 14 days and not more than 3 months, before the day the application is filed in Court.

Common Errors to Avoid

If not all Executors Named in the Will Applying

Note: It is common in a will for one or more persons to be nominated in the first instance as executor [this person(s) is the institute executor], and then if that executor predeceases the testator or is unable to act as executor, then another person(s) is nominated as executor as second choice [this person(s) is the substitute executor].

If application is not being made by all the institute executors named in the will, the reason why the other institute executors are not applying must be reflected in the application and the grant.

If application is being made by the substitute executor, the reason why the institute executor is not applying must be reflected in the application and the grant.

Reasons for the above must also be deposed to in the affidavit of the applicant and evidence of the particular reason (e.g. a death certificate or renunciation form – Form 3.15) annexed to the affidavit.

Example: Where there is one institute executor (now deceased) and 2 substitute executors (one has renounced probate) - the grant and the application should include the following wording:

“…granted to [NAME], one of the substitute executors named in the will, the institute executor, [NAME], having predeceased the testator, and the other substitute executor [NAME] having renounced probate.”

Original Will

The original will must be filed separately.

Note that the original will must be signed by the applicant(s) and the witness(es) to the applicant’s affidavit – (see paragraph 1 of the affidavit in Form 3.11).

The Grant of Probate

The grant must be filed in duplicate with a copy of the will attached to each.

Persons' Names

Names of the deceased and the executor must be spelt correctly and full names should be used.

Slight variances in the name of the deceased (e.g. differing in spelling or usage in death certificate compared with the will) must be reflected in the application and the Grant (e.g. [NAME] also known as [NAME]).

Slight variances in the name of the executor must be reflected in the application and the grant (e.g. [NAME] (in the will called [NAME])).

Changes in the name of an executor must be reflected in the application and the grant (e.g. [NAME] (in the will called [NAME])) and also be deposed to in the applicant’s affidavit, annexing evidence of such name change (e.g. marriage certificate, deed poll).

Value of the Estate / Property

NOTE: “Property” in the applicant’s affidavit refers to all property (assets) in the ACT  – not just real property.

Sufficient detail must be given to identify assets listed in the inventory.

The value of the estate (in the affidavit and the grant) is the gross value – not the nett value.

The percentage of the value of real property held as a tenant in common by the deceased should be included in the estate.

General

The date of death on the grant and in the affidavit must accord with the date on the death certificate.

The date of the will on the grant and in the affidavit must accord with the date on the will.

Each annexure to the applicant’s affidavit must have the requisite annexure clause on it and be signed by the witness to the affidavit (see Form 6.12).

Where any affidavit is more than one page in length, the deponent and the witness to the affidavit must initial at the foot of each page.

NOTE: If signing the affidavit at the court registry, an annexure clause stamp is available.