What is Probate?
Probate is a court order made by the Supreme Court of NSW which confirms that the Will of the deceased person is valid and gives permission to the Executor to distribute the estate in accordance with the deceased person’s Will.
Who can make an application for probate and when must an application be made?
The Executor named in the Will can make an application for probate. An application for probate should be made within 6 months of the death of the deceased. If an application is made outside of this time, the Executor will need to explain the reason for the delay to the Court.
What if the Executor renounces probate or no Executor is appointed?
If the Executor renounces probate, the substitute Executor named in the Will is able to take on the role. If no substitute Executor is named in the Will or the substitute Executor is not able to act, the Court is able to instead appoint an administrator of the estate.
Is an Executor legally required to make an application for probate?
The Executor is not legally required to apply for probate, however there are a number of circumstances in which probate will be required, such as:
- If the deceased owned real estate in either their own name or as tenants in common
- If asset holders require a grant of probate before they will release or transfer the assets of the estate (this is common in the case of banks, share registries and Government departments or agencies)
There are also a number of legal and practical considerations that an Executor should consider when deciding whether or not they should apply for probate.
What are the reasons for applying for probate?
There are two main reasons to apply for probate:
- Probate provides the Executor with the legal authority to administer the assets of the deceased. As such, if the Executor administers the assets of the estate without Probate, they may be held personally liable on the basis that they were not legally authorised to deal with the assets of the estate; and
- Probate provides the Executor with protection from any claims which may be brought by a creditor or beneficiary of the estate.
When is probate not required?
There are a number of circumstances where an application for probate is not required, namely:
- If the deceased only had a minor number of personal possessions/ assets and the value of those assets are small
- The deceased only owned assets (for example, real estate) as a joint tenant (this is because the asset will pass to the surviving joint tenant)
How much does a grant of probate cost?
The filing fee payable to the Supreme Court of NSW will be dependent on the value of the estate and is only applicable if the estate has a value greater than $100,000.
What documents/ Information is required to apply for probate?
The Supreme Court of NSW will require the following documents in order to grant probate:
- The original Will of the deceased and any Codicils to the Will
- The deceased’s original death certificate
The information we will require to in order to prepare the application for a grant of Probate includes:
- A statement of the value of the deceased’s assets and liabilities as at the date of their death
- The details of the beneficiaries under the Will
If you or your clients would like our assistance to obtain a Grant of Probate, please complete our information schedule and email same to firstname.lastname@example.org. To access our information schedule, please click here.
If you require more information, or have any further questions in relation to the Grant of Probate, please do not hesitate to contact Hayden Rudd of our office on (02) 9687 3755 or via email on email@example.com.
Please note that our blog is of a general nature and is not intended to be a substitute for legal advice.