Probate - What is Probate?
What is Probate?
Probate is the legal process by which the Supreme Court of New South Wales formally recognises a deceased person's Will and confirms the authority of the executor named in the Will to administer the estate.
A Grant of Probate enables the executor to deal with the deceased's assets, including collecting money held in bank accounts, dealing with property and investments, paying outstanding debts and expenses, and ultimately distributing the estate to the beneficiaries in accordance with the Will.
Not every estate requires Probate. Whether a Grant is necessary will generally depend upon the nature, ownership and value of the deceased's assets and the requirements of the organisations holding those assets.
When is Probate usually required?
A Grant of Probate may be required where the deceased owned significant assets in their sole name, such as:
- real estate;
- substantial bank accounts or term deposits;
- shares and investments; or
- other assets where the institution holding the asset requires a Grant before releasing or transferring it.
Assets held jointly may pass directly to the surviving joint owner and may not require Probate. Different banks, financial institutions and asset holders can also have different requirements.
Applying for a Grant of Probate in NSW
The executor named in the Will is generally responsible for applying to the Supreme Court of NSW for a Grant of Probate.
The key steps usually include:
1. Locate the original Will
The executor should locate the deceased's original Will and any codicils and confirm that they are the person appointed as executor.
The original Will is important because it will ordinarily need to be provided to the Supreme Court as part of the Probate application.
2. Obtain the Death Certificate
Obtain the deceased's official Death Certificate. Details from the certificate are required for the Probate application and it forms part of the supporting evidence.
3. Identify the deceased's assets and liabilities
The executor should identify the assets and liabilities of the estate and obtain appropriate information about their value.
This may involve contacting banks, financial institutions, share registries, superannuation funds and other organisations and obtaining information concerning any real estate owned by the deceased.
4. Commence the application through the NSW Probate Service
Applications for an uncontested Grant of Probate are now managed through the NSW online Probate Service.
The online application asks questions about the deceased, the Will, the executor and the assets forming part of the estate. The Probate Service also generates the relevant court documents required for the application.
5. Publish the Notice of Intended Application
A Notice of Intended Application for Probate must be published.
The online Probate system publishes the notice as part of the application process. The notice provides public notification of the executor's intention to apply for Probate.
At least 14 days must pass after publication of the notice before the Probate application can be filed with the Court.
6. Prepare and sign the Probate documents
The Probate Service generates the relevant documents, which generally include the:
- Summons for Probate;
- Affidavit of Executor;
- Inventory of Property; and
- proposed Grant of Probate.
The required documents must be properly completed, signed and witnessed where applicable.
7. Lodge the application
The completed application and supporting documents are lodged with the Supreme Court of NSW through the Probate Service.
The original Will and any codicils must also be provided to the Court in accordance with the Court's requirements.
A filing fee may be payable depending upon the gross value of the estate.
8. Respond to any Court requisitions
The Supreme Court may issue a requisition if further information, evidence or clarification is required.
Any requisition must be satisfactorily answered before Probate can be granted.
9. Grant of Probate
Once the Court is satisfied with the application, the Supreme Court issues the Grant of Probate.
The executor can then use the Grant to collect and deal with estate assets, pay the deceased's debts and estate expenses and, when appropriate, distribute the estate to the beneficiaries in accordance with the Will.
How Cleverminds Legal Can Help
Administering an estate can involve considerably more than completing a Probate application. Executors have important legal responsibilities and may need to deal with property, financial institutions, taxation, creditors, beneficiaries and potential claims against the estate.
Cleverminds Legal can assist you throughout the Probate and estate administration process — from reviewing the Will and preparing the Probate application through to collecting, transferring and distributing the estate assets.
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