What is The Purpose of a Grant of Probate? 

A grant of probate in New South Wales is a court order issued by the Supreme Court which gives the person named as executor power to administer the estate and distribute the estate pursuant to the terms of the deceased’s will. A grant of probate is a legal document that authorises an executor of an estate to deal with the estate assets. 

Where a person dies without a will, the court may grant Letters of Administration to an administrator which gives the administrator power to administer the estate and distribute the estate in accordance with the rules of intestacy.

Who Can Apply for a Grant of Probate in NSW?

The executor named in the deceased’s last will has the right, but not the obligation, to apply to the Supreme Court of New South Wales for a grant of probate. 

The Role of the Executor in the Probate Process

The executor has responsibility for administering the deceased estate in accordance with the relevant probate laws and for distributing the estate in accordance with the terms of the deceased’s will. 

A grant of probate gives the executor power to deal with the deceased’s estate, including transferring property and other assets into the executor’s name as part of the administration process. Whether or not an executor will require a grant of probate to deal with the estate assets will depend on the size and nature of the deceased estate. In some cases, there may be no need for the executor to apply for probate to administer an estate, and the estate may be administered without the need for probate.

What Documents Are Required When Applying for a Grant of Probate?

When applying for probate, the executor is required to file the prescribed documents. 

The executor will often engage a lawyer to prepare the prescribed documents. Documents that may assist in the preparation of these documents include bank statements, insurance records, tax returns, share certificates, title deeds, and tax invoices.

Applying for a Grant of Probate in the Supreme Court of NSW

Step 1: Identifying and Locating Last Will

One of the first steps involves identifying and locating the deceased’s last will.

Sometimes this is an easy task if the will is stored in a known location. Other times, it can be more difficult where, for instance, it is not known whether the deceased had a will and, if they did, where it was stored. This may require a search of the deceased’s home or personal records or wider inquiries to be made, for instance, with the deceased’s bank, local lawyers, or with the NSW Trustee and Guardian (an agency that is part of the NSW Government). 

Step 2: Engaging a Probate Lawyer

Once the will has been identified and located, the executor will usually engage a solicitor to provide advice and assistance on the probate process. Where probate is required, the solicitor will usually publish a notice titled “Notice of Intention to Apply for Probate” via the NSW Online Registry website. This notice of intended application will give the general public notice of the executor’s intention to apply to the court for probate. The probate notice will usually invite any creditors to notify the executor of any debts being claimed against the estate and provide the contact details of the executor’s solicitor. 

Where the deceased died without a will, another person may apply for administration of the estate. This person is usually the next of kin but may also be another person, depending on the circumstances. 

Step 3: Preparing Court Documents

In New South Wales, a grant of probate is usually necessary to administer and distribute a deceased estate, and there are documents that are required to be filed with the probate application. These include:

• A Summons for Probate.
• An Affidavit of Executor.
• A copy of the Death Certificate.
• The will and any codicils.
• An Inventory of Property owned by the deceased person either solely or jointly.
• Any further affidavit evidence as required.
• A stamped, self-addressed A4 envelope.

Step 4: Lodging Probate Application

An executor must apply for probate within 6 months of the date of death of the deceased person. If an application for probate has been filed more than 6 months from the date of the deceased’s death, the executor will be required to give an explanation for the delay.

The application for a grant of probate cannot be filed within 14 days from the date of the probate notice. 

The filing fee is the cost of the grant of probate or the grant of letters of administration and is determined by the gross value of the estate’s assets; therefore, the more valuable the estate, the higher the filing fee. These fees are in addition to solicitors fees. 

In some instances, an executor may receive a written requisition from the court asking for further information or documentation. 

Step 5: Estate Administration

Once the executor obtains a grant of probate, they may commence administration of the estate. 

Administration of the estate will usually involve identifying and calling in the deceased’s assets and liabilities, paying debts, dealing with government agencies, filing tax returns, defending claims and other matters.

The period of administration will depend on the size and nature of the estate and may take anywhere from a couple of months to several years. 

Step 6: Estate Distribution

Once the estate’s debts have been paid, including funeral, testamentary and administration expenses, and other debts payable by the estate, the balance of the estate will be distributed to the beneficiaries in accordance with the terms of the deceased’s will. The distribution may include a transfer of property or a cash distribution to the beneficiaries. 

Prior to distributing the assets, the executor or their lawyer will usually publish a second online notice titled “Notice of Intended Distribution” which gives the general public notice that the executor intends to distribute the estate.

By publishing the required probate notices before making any distributions, the executor will be able to limit their personal liability if a complaint is later raised regarding the distribution of the estate.

Step 7: Finalising Probate

The length of probate depends on many factors and may take anywhere from six months to several years. 

Once an estate has been duly administered and distributed, the executor can proceed with finalising probate.

Obtaining Probate in Common Form in an Uncontested application

Where an application for probate is uncontested, an application may be made to the probate registry for a grant of probate in “common form”. 

On the other hand, where an application for probate is likely to be contested, for instance, where a person claims the last will is not valid, the executor may be required to apply for a grant in “solemn form”. This may be required where a person challenges the validity of the last will on grounds that the deceased lacked testamentary capacity at the time of making their will, the will was made in suspicious circumstances, or the will was the product of undue influence or fraud. 

Renunciation of Probate by Executor

An executor is not obliged to act as executor and may renounce or resign from the role.

By renouncing probate, a person is giving up the right to apply for probate of the deceased’s will and to act as executor of the estate.

Examples of why a named executor may decide to renounce their role as executor may include where the executor feels they do not have the time to perform the role, where one or more other executors have agreed to accept the role, where an executor does not want to apply for probate, or where the named executor has grown distant from the deceased or has fallen out with the deceased and no longer feels obliged to assist the deceased in that manner. 

Navigating Complex Probate Scenarios

No Executor Willing or Able to Act as Executor

Those named as executors do not always end up acting as executor.

An executor who dies before the deceased’s will comes into effect loses the right to act as executor and any surviving executor who choose not to act as executor may renounce the role. In the case of renunciation, this may occur before a grant of probate and even after a grant of probate, but may require court approval if the executor has ‘intermeddled’ with the estate. 

Before a grant of probate

An executor may renounce their role as executor before a grant of probate. 

An executor can formally renounce probate by completing and signing a renunciation of probate form, which is then filed with the court with any later application for probate or administration, or informally by simply taking no steps to administer the estate or intermeddle with the estate. 

An executor can only renounce the role if they have not ‘intermeddled’ in the estate. This means they have not already acted in a way indicating they’ve accepted the role of executor, such as selling assets or paying debts. If the executor has intermeddled in the estate, court approval may be required before they can renounce the role. 

Where there is more than one person named as an executor, if one executor decides to renounce the role, the other remaining executors may apply for a grant of probate. 

Where there is a valid will but there are no executors willing and able to act as executor, someone else (usually the next of kin or beneficiary with the largest interest in the estate) will apply for letters of administration of the estate. An application of this kind is referred to as an application for ‘Letters of Administration With the Will Annexed’.

After a grant of probate

Circumstances may also arise where an executor renounces the role after a grant of probate.

Where for instance an executor becomes ill or wishes to renounce the role for other reasons, the executor may renounce the role. If the executor has intermeddled in the estate, the executor may require court approval to renounce. 

If an executor dies after a grant of probate, the executor of the deceased executor assumes the role of executor of the original deceased person’s estate. 

Beneficiaries may also make an application to the Supreme Court for an order revoking the grant of probate where the executor has neglected their duties, however, this can be costly and time consuming process. If you are a beneficiary and would like to remove the executor, we recommend you seek legal advice.

Contested Probate Applications

A probate application may be delayed if the will is challenged or if a family provision claim is brought against the estate. 

One factor that may delay a grant of probate is when a person challenging the validity of the will or contesting the will files a probate caveat. A probate caveat remains in place for six months, unless withdrawn earlier, and prevents the court from issuing a grant of probate during this period.

Another factor that may delay a grant of probate is when a person challenges the validity of the will and the dispute cannot be resolved through negotiations. In these cases, the executor may be required to apply for a grant of probate in ‘solemn form’ which means the matter will require a court hearing in order to determine which will was the last valid will of the deceased. In this instance, the NSW Supreme Court will only grant probate for a will once satisfied that it is the deceased’s last valid will. These are referred to as contentious probate proceedings and can take years to finalise.

Disagreements between beneficiaries

Disagreements between beneficiaries and executors/administrators are common in probate applications. Once probate has been granted, a beneficiary may not receive their entitlement or sufficient updates for months or even years, causing conflict between the parties.

Disputes between beneficiaries themselves may also arise when there is disagreement regarding decisions made by the executor/administrator, or the way the executor/administrator interprets the will (known as a ‘construction’ issue). 

A specialist wills and estates legal team is best placed to navigate these complexities during probate to minimise the impact on all parties. 

Do the requirements in New South Wales differ from other States?

There are different requirements for applying for probate in different states of Australia. 

The size and nature of a deceased estate and the location of the assets will usually determine whether probate is required in any particular state. 

How Our Team Can Help Simplify Your Probate Application

Applying for probate can be a stressful undertaking, particularly whilst grieving the death of a loved one.

If an executor or administrator fails to administer the estate properly, they may be held personally liable to repay or compensate the estate or beneficiaries. 

Get started with a probate lawyer today!

If you are an executor and are looking for a probate lawyer to act as a complete guide to probate, or assistance in the probate court, contact Empower Wills and Estate Lawyers now.

Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.