When a loved one passes away, the act of administering their estate can be a complex process. If the deceased had a will, the process often starts with a ‘Grant of Probate’.
What is probate?
Probate is a court order that validates a deceased person’s will. Probate is said to be ‘granted’, and when this occurs, the executor named in the will has permission to distribute the estate according to the will.
Probate is required under certain circumstances, for example, when a person leaves behind certain types of assets, such as property, shares or money in a bank account for which the deceased was the sole account holder. It may also be necessary to apply for probate when a will is contested.
Who applies for a Grant of Probate?
The executor named in a will should apply for a Grant of Probate at the Supreme Court of NSW, basically within 6 months of the deceased’s death. Applying for a Grant of Probate outside of 6 months will require a reasonable explanation.
How to apply for probate
Applying for probate is a multi-step process.
Publish a probate notice
A probate notice must be published by the Estates Lawyer on the NSW Online Registry website before an application for probate can be made to the Supreme Court of New South Wales. The probate notice must include various information like:
- Full name and address of the deceased
- Deceased person's will or any codicils (if applicable)
- Death certificate
- Whether the deceased left any assets (property) in New South Wales
- Full name of the executor (or executors) and residential address
Wait 14 days
After the probate notice has been published and the time period has lapsed, you can attend to making an application for probate. However, during this time, various authorities are contacted by the Estates Lawyers to ensure what the actual assets are of the estate and what is needed.
File probate application
After at least 14 days, you can apply for a Grant of Probate. However, you must have all the relevant information with regards to the assets from the relevant authorities, which takes more than the 14 days. The Estate's solicitors will attend to following up the authorities and ensuring that the relevant information has been received. An application will then be made to the Supreme Court of New South Wales, and the Estates solicitors will then prepare the following documents for the court and have the Executor sign.
These documents include:
- Summons for Probate
- Probate
- Inventory of property
- Affidavit of executor and auxiliary documents
- Will (and codicils if applicable)
- Death certificate
All applications require payment of a filing fee. Once the application has been filed, and the filing fee paid, provided there are no mistakes, probate will be granted. There is no need to attend court. Depending on the Court time frames and backlog, this could take 3 to 8 weeks before granted.
Challenges
Accuracy is paramount in an application for probate. Mistakes or incomplete information can result in considerable delays.
If any of the information provided is incorrect, incomplete or more information is required, the registrar will send a written requisition outlining the problem. Often a form may need to be re-filed or a separate affidavit may be necessary to answer the requisition. An application for probate will not be granted until a requisition has been addressed with a satisfactory response. The Court may also require further information as they require clarification with regards to certain matters.
Applying for a grant of probate may also be challenging when the named executor is incapable, a minor, unwilling to act or living in a different jurisdiction or has died, and there is not co-executor to take over.
Applying for a Grant of Probate is an involved process, and small mistakes can be costly in both time and money. Enlisting the help of a lawyer who specialises in wills and estates will ensure it is a smooth process. An experienced lawyer in this area can help you and relieve the stress in the process. In complicated cases, they can help respond to a requisition that requires additional information.
Has the death of a loved one suddenly left you in charge of administering an estate? Are you wondering where on earth you should start? Contact the experts at Taylor & Scott Lawyers on 1800 600 664.
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