If someone in your life passes away, there are processes required in order to carry out the wishes set out in their final Will. Probate is one of these processes.
Probate is the official ‘proving’ of a Will. A ‘grant of probate’ is a court order – made by the Supreme Court in New South Wales – that confirms that the Will is valid, and authorising the executor to deal with the assets and liabilities of the estate in accordance with the Will.
To obtain a grant of probate, the person the deceased has appointed as executor of their Will must first advertise their intention to do so. This is published on the New South Wales Online Registry. This notifies any creditors of the estate to make their claims known to the executor. For example, if the deceased owes anyone any money. Fourteen days after the publication of the notice, the executor can apply to the court for the grant.
The executor must file an affidavit with the application, setting out the requisite information for the Court to validate the Will, the beneficiaries named in the Will and their entitlements to the estate, and an inventory of the estate’s assets and liabilities. The death certificate and where at all possible the original Will, is also provided to the Court. A filing fee, scaled to the value of the estate, is payable at this time.
In some cases, such as when the estate is small or depending on the nature of the assets held in the estate, probate may not be needed. For example, if the deceased does not own any real estate, shares, and only has minimal savings, then Probate will not be needed. Most banks have a threshold for when they require Probate in order to release funds to the Estate, so if the deceased’s savings are under this threshold, a certified copy of the Will and the Death Certificate are usually enough for the bank to release the funds. This should always be verified with the relevant financial institution first.
Assuming everything is in order and the estate is not complicated, a grant of probate typically takes around four weeks. Once the grant has been made, the executor is authorised to ‘call in the estate’ and distribute it in accordance with the Will.
The Probate process can be quite emotional and complicated, so please contact our office on 9976 5222 if someone in your family has recently passed away and you need assistance with Probate.
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This information and information published on our website and social media sites is general in nature and for information and entertainment purposes only. This information does not constitute legal advice and should not be relied upon as such. If you require legal advice which takes into account your personal circumstances, please contact us for an appointment.