Welcome to the definitive guide to managing probate in NSW.
Here, we’ll answer your most frequently asked questions:
- What is probate?
- Who can apply for probate?
- How to apply for probate
- How long does the probate process take in NSW?
- When is probate required in NSW?
- How to find a will?
- What is a reseal?
- Contesting a Will in NSW
- How a Probate Lawyer can help
1. What is Probate?
Losing a loved one is never easy and the administrative processes surrounding estate administration can seem overwhelming and daunting.
In NSW, you’ll often have to apply for probate to manage the deceased’s assets.
Let’s have a look at what a grant of probate is.
What is A Grant of Probate?
When someone passes away, one of the first tasks is to locate the will.
The will is a legal document that specifies what will happen to the deceased’s assets and estate.
A Grant of Probate is a court order that acknowledges the will, signifying that the Supreme Court of NSW agrees the will is valid and that the executor has permission to distribute the estate according to the will.
The will also appoints an executor responsible for carrying out various tasks to administer the deceased’s estate.
The executor tidies up the deceased’s affairs, such as organising assets and estate as well as distributing other physical possessions.
2. Who Can Apply For Probate?
The executor applies for probate. If there is more than one appointed executor in the will, they all need to be included in the application.
If the willmaker has nominated an executor as his first choice and then nominated an alternative person, the first-named executor has precedence. Until the first choice renounces their role as executor, the second choice cannot apply for probate.
What Does An Executor of A Will Do?
The responsibilities of an executor include:
- Finding the will;
- Notifying beneficiaries — people named in the will who receive a portion from the estate;
- Arranging the funeral;
- Obtaining the death certificate;
- Confirming insurance of assets;
- Verifying assets and liabilities;
- Obtaining probate (if required);
- Preparing tax returns and receiving income tax clearances;
- Paying the deceased’s debts and duties;
- Distributing the assets according to the will.
If you’d like to turn down your role as executor, it’s best to do so as soon as possible.
Seek legal advice from the solicitors at New South Wales Probate here.
3. How To Apply For Probate?
Before applying for probate, a notification of your intention for a grant will need to be submitted on the NSW Supreme Court’s website.
At the same time, a declaration of your intention to administer the estate will be made before waiting a minimum of 14 days before applying for probate.
Then, the following steps are required:
- Prepare your documents — the original copy of the will, any codicil and the original death certificate;
- Receive the supporting forms;
- Fill in the Summons for Probate;
- Fill in the Grant of Probate;
- Fill in the Inventory of Property;
- Prepare the Affidavit of Executor;
- Attach the documents to the Affidavit of Executor;
- Sign the margin of the will;
- File the application at the Supreme Court of New South Wales;
- Reply to requisitions from the court;
- Receive grant of probate.
You should apply for probate within six months. If you lodge a request after that timeframe, an explanation of the delay is to be provided the court. So, to avoid unnecessary problems, it’s best to apply for probate quickly.
4. How Long Does Probate Take in NSW?
The court’s processing times vary, depending on the number of applications and the actual processing times.
In general, you can expect to wait roughly 20 days from the date of filing the probate application.
However, it can take longer if the forms are not filled in correctly, so it’s always recommended to engage a probate lawyer to avoid unnecessary delays.
5. When is Probate Required in NSW?
Whether to obtain a grant of probate depends on the size and value of the assets in NSW.
There’s not always a statutory requirement.
Probate is generally required in NSW when the deceased owns:
- Land or a house;
- Accounts in any bank exceeding $50,000;
- Shares worth over $15,000; or
- A substantial superannuation.
When is Probate Not Needed?
There’s no need for a grant of probate if the assets of the deceased were jointly owned and the co-owner is still alive. In that case, the assets are automatically passed on to the remaining joint tenant.
If the property is purchased as tenants in common, each person owns a specific share of the property.
When one of the owners passes, a grant of probate is required. Their share will pass on to the beneficiaries nominated in their will.
There is also no need to apply for probate in the following events:
- A will was never made (intestacy);
- Cannot be found (intestacy); or
- There is no executor named in the will.
Instead, you’ll need to apply for Letters of Administration.
6. How To Find A Will?
If the person who passed away made a will, you may be able to locate it:
- At their home;
- In possession of a family member;
- With their solicitor; or
- With their bank.
There is no public registry of wills, but several private providers offer secure storage services of wills.
The NSW Trustee & Guardian holds the most extensive database.
You can lodge a Deceased Will enquiry on their website to find whether they hold a will.
7. What is a Reseal?
Once you receive the grant of probate, it is only effective in that jurisdiction.
When the deceased has significant assets or real estate in other states, such as Queensland, you’ll need to enforce your grant of probate in QLD.
Resealing is the process of having a NSW grant of probate recognised in another state or territory.
Lodging a request for reseal is not as complex as applying for probate. That way, you omit having to go through the process again.
8. Contesting A Will in NSW
When someone chooses to contest a will in NSW, it is either because they question the document’s validity or feel they haven’t been properly provided for.
Reasons why someone would contest a will based on its validity:
- The person who made the will lacked testamentary mental capacity;
- Undue influence;
- Fraud;
- Family provision; or
- Forgery.
A Family Provision claim can be filed when a person feels they are left without adequate provisions.
Only those very close to the deceased or immediate family members are eligible to make such a claim.
The application must be sent to the Supreme Court of NSW within 12 months after the deceased’s death.
It’s important to challenge the will as soon as possible and preferably before the probate is granted.
You can apply for a probate caveat which will prevent the court from granting the probate until the caveat is removed.
Do you believe you have legitimate grounds to contest a will in NSW?
Contact our probate solicitors today to help assess your case.
9. How a Probate Lawyer Can Help
Navigating the probate process during an already difficult time can be time-consuming, and often, a complex responsibility. Engaging a probate lawyer can help you make the process much easier.
They can guide you through every step by:
- Informing you of your rights and responsibilities;
- Helping you apply for probate and completing the probate forms;
- Helping you identify and collect the deceased’s assets;
- Advising you on paying the debts and taxes;
- Assisting you in replying to the court’s requisitions; and
- Assisting you in distributing the deceased’s assets.
Contact us to schedule an appointment to see what else we can do for you.
What to Look For in a Probate Lawyer
First of all, when finding and selecting the right solicitor, it’s essential to choose one that was not also hired to draft the deceased’s will.
We recommend you interview a few solicitors, either by phone or in person.
To determine whether a probate lawyer is the right fit for you, you should consider a few things:
1 – Background and expertise
A good lawyer has had similar cases like yours and is well-versed in navigating probate. Ask the solicitor how many (comparable) probate cases they have had and if he has any references.
2 – Approach and tone
How does the lawyer come across? Are they ready/available to devote their time and attention to your case? The right probate lawyer is supportive and willing to go the extra mile.
3 – Transparency about costs
To ensure you don’t end up with hidden costs, it’s crucial that the solicitor is transparent about their rates. You can get a good indication of how much you could be spending by asking for an outlay of the costs.
4 – Geographic location
Going through the process of probate, you’ll be looking for a probate lawyer near you. You’ll be working closely for a period, so the last thing you want is to spend extra time travelling long distances.
Start Your Probate Application With NSW Probate Lawyers
NSW Probate offers you a diligent and supportive team with over 65 years of combined experience. Our solicitors are on hand to guide you through a seamless probate application process.
Submit a probate application form to check your eligibility or call us to schedule an appointment.