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What is Probate?
Probate is the legal process of validating a deceased person’s Will to ensure that person’s testamentary wishes are carried out by their appointed executor.
Put simply, it is the Supreme Court of New South Wales recognising the person’s Will as valid.
When applying for a Grant of Probate in New South Wales, an application must be filed with the Supreme Court. An Application for a Grant of Probate must include the following:
- Summons for Probate;
- Original Will of the deceased;
- Affidavit of Executor/s;
- Death Certificate of the deceased;
- Inventory of property detailing the deceased’s assets and liabilities; and
- Grant of Probate.
What are Letters of Administration?
A grant of Letters of Administration is a legal document issued by the Court, which allows the administrator(s) to manage and distribute the deceased’s assets.
It is typically required when the deceased has died without a will, however may also be necessary if there is no executor available to apply for a grant of probate.
The administrator of an estate is responsible for collecting the deceased’s assets, paying any debts and then distributing the assets to the beneficiaries.
How can we help?
Our qualified Estate solicitors can assist you by:
- Interpreting the terms of the Will;
- Advising executors of their rights, responsibilities and duties;
- Informing government departments;
- Where there is a valid Will, preparing and applying for Probate in the Supreme Court;
- Where there is not a valid Will, preparing for and applying for Letters of Administration in the Supreme Court;
- Calling in estate assets and paying estate liabilities;
- Selling or transferring of estate property and obtaining valuations where required; and
- Preparing a distribution statement and attending to distribution of the estate.
Frequently Asked Questions
A Notice of Death is a form required to be lodged with Land Registry Services when an individual has passed away, whilst holding property as joint tenants with another. This process ensures that the legal title is transferred from the deceased’s name with the other joint tenant/s to those surviving. A Notice of Death is mandatory when selling a property where one of the owners has passed.
Probate is required when a person has passed away leaving an estate greater than a certain value or leaving specific types of assets.
Typically, if the deceased held bank accounts in their sole name, the financial institution will require a Grant of Probate prior to releasing the funds to an executor. Each financial institution will have its own internal policy regarding whether a Grant of Probate is required for a certain amount and it may be worth checking with them in relation to your circumstances.
If the deceased held property in their sole name or as tenants in common, a Grant of Probate will be necessary to enable the transfer of the property into the names of the beneficiaries or to sell such property.
Commonly, a Grant of Probate can only be sought by the executor or executors named in a Will. If the executor or executors named in the Will are unable or unwilling to act, it may be necessary for a beneficiary to apply in these circumstances.
Applying for a Grant of Probate can be a time consuming and complex process. It is therefore highly advisable that upon a person passing away, you immediately get in contact with us so we may ensure that strict time limits are met.
To file the Application for a Grant of Probate, a filing fee to the Supreme Court is payable. This fee is determined by the Supreme Court and is based on the value of the deceased’s estate.
However, when engaging a firm to obtain a Grant of Probate or Grant of Letters of Administration (whichever is required), it is important to enquire as to whether the legal fees are in relation to only obtaining the grant or whether they extend to acting in the administration of the estate after the grant is made.
An Application for a Grant of Probate must be made by the executor or executors within 6 months from the date of the deceased’s death. The first step in the process is publication of the notice of intended application for a Grant of Probate. Legislation necessitates that you must wait two (2) weeks before submission of the Application of the Grant of Probate to the Supreme Court. Once the Application of the Grant of Probate is submitted it can take between 3-8 weeks, depending on how busy the Supreme Court is before a Grant will be issued.
An interim distribution can be made to the beneficiaries of the deceased upon receipt of the Grant of Probate, however it is recommended that distribution does not occur within 6 (six) months from the date of death of the deceased, to ensure executors are protected from personal liability.
