What is Probate of a Will in NSW
What Is Probate in NSW?
Probate is the process involving the administration and distribution of a deceased estate.
One of the first steps in the probate process is to apply for and obtain a Grant of Probate, which is a court order confirming the validity of the deceased’s will and which gives the executor authority to deal with and administer the deceased estate.
Probate is a legal process that varies from one State or Territory to another.
When Do You Need a Grant of Probate?
Probate may be needed where the estate of the deceased includes property and assets (i.e. cash in the bank), which won’t be transmitted or released without a grant of probate.
The named executor is the person who has the right to apply for probate and administer the estate.
If there are two or more executors named in the will, they may act jointly with another executor if the will allows.
If the person named as executor does not want to act as executor, they may renounce the role in which case another named executor may make the probate application, or where there are no other executors named or no will at all, the next of kin can apply for letters of administration of the estate.
In some cases, an executor named in a prior will or beneficiary may contest probate being granted for the last will. In some cases, the court will be required to determine which will was the deceased’s last valid will.
When Do You Not Need Probate?
Probate is not always needed.
Examples of where probate may be required include:
- where the deceased person only held property jointly (as those assets pass to the surviving joint owner under the rules of survivorship),
- where the assets of the deceased do not exceed a certain amount,
- where the value of the estate does not exceed a certain amount,
- where the assets of the estate can be transferred without a grant.
These are just some of the examples where probate may not be necessary and where a person may be able to bypass probate.
Where a person dies without a will (referred to as dying intestate) and there are assets that need a grant in order to be administered, the deceased’s next of kin (usually a close relative) may apply for Letters of Administration which, if granted, gives the administrator power to administer the estate.
Whether an executor needs to apply for probate or the next of kin needs to apply for Letters of Administration depends on whether there is a valid will and in some cases, the contents of the will.
Why Probate is Not Always Required
Probate may not be required if the deceased died holding only jointly owned assets, a small amount of money in bank accounts, where the value of an estate does not exceed a certain amount, or where the assets can be transferred without a grant.
These are just some examples of when avoiding probate of a deceased person’s estate may be possible. Whether probate would be required depends on the facts and circumstances of each case, and independent legal advice should be obtained in all cases.
Who Can Apply For Probate of a Deceased Estate?
Once a person has died, one of the first steps the deceased’s family will usually take is to locate the deceased’s last will.
The executor named in the last will has the right to apply for probate and administer the estate and distribute the estate in accordance with the terms of the will. The executor will need a grant a probate in order to deal with the estate.
If the deceased had no will, then the deceased’s next of kin may apply for administration of the estate.
What is The Probate Process?
The probate process may require the executor to take the following steps:
- Identify and locate the deceased’s last will.
- Make funeral arrangements.
- Obtain copies of legal documents, including a copy of the death certificate.
- Identify the deceased’s assets and liabilities.
- Call-in the deceased’s assets and liabilities.
- Prepare court documents (i.e. affidavits).
- Apply for and obtain a grant of probate from the probate court’s registry.
- Pay court fees.
- Resolve disputes in the probate court.
- Lodge the tax returns for the deceased and estate.
- Pay estate taxes.
- Ensure debts are paid.
- Resolve inheritance disputes between beneficiaries.
- Distribution of assets to beneficiaries.
- Finalise estate administration.
- Apply for a reseal of a grant in another state and territory.
A probate lawyer will be able to assist with the steps outlined above.
Applying for probate can be a stressful process, particularly whilst grieving the death of a loved one.
Contact an experienced solicitor at Empower Wills and Estate Lawyers for advice and assistance.
What To Do If There Is No Will
If the deceased died without a will, the deceased’s next of kin (usually a close relative) may apply for administration of the estate.
The legal process for applying for administration is similar to an application for probate and as with probate, the process can take a long time.
What is the Letters of Administration Process?
Letters of Administration is a court order that appoints an administrator to a deceased estate where there is no valid will or no executors willing or able to act as executor. Once appointed, an administrator will have the authority to lawfully deal with, administer, and distribute the deceased person’s estate’s assets.
Is Probate Required to Access a Life Insurance Payment?
Where the deceased has assets that were held by a trustee, for instance, a life insurance policy, subject to any other issues or claims, the benefit will be paid directly to the beneficiary named in the policy.
Where a life insurance benefit does not fall within the deceased’s estate, a grant of probate or letters of administration is not required.
Need Legal Advice on the Probate Process in NSW? Contact Our Probate Lawyers Today.
If you have any questions about succession law, for instance, how probate is used to distribute the assets of an estate, what probate costs, how to complete the probate process as an executor or administrator, or other estate planning questions, contact our team of experienced probate solicitors today on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation.
Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. 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 and circumstances.