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Frequently Asked Questions
What is Probate?
A Grant of Probate is a legal document that is obtained from the Supreme Court of NSW which authorises the executor appointed in the deceased’s last Will to deal with their estate in accordance with their wishes.
Who do you need Probate?
In most cases the Executor requires a Grant of Probate in order to collect, manage, and distribute the deceased’s estate. This is because asset holders, such as banks, aged care facilities, and share registries, rely on the Grant of Probate to be sure they are authorised to deal with the Executor appointed in the deceased’s last Will.
What does an Executor need to do?
The Executor may be required to perform the following tasks:
Arrange the funeral: The Executor is required to organise the funeral and liaise with the funeral director to apply for a Death Certificate.
Notify relevant organisations: The Executor must promptly notify various organisations regarding the deceased person’s death – including:
- Financial institutions (for example, banks and the Australian Taxation Office)
- Service providers (for example, telcos and energy providers)
- Other relevant organisations (for example, Roads and Maritime Services)
Notify beneficiaries: The Executor must locate the deceased’s last Will and promptly contact the beneficiaries to notify them of their entitlements.
Look after the estate: The Executor must ensure all assets – including property and investments – are safe and protected. This includes arranging insurance to provide further protection if required.
Defend claims: The Executor must defend any claims brought against the estate, (for example, family provision claims).
Value the estate: The Executor must identify and determine the value of the estate’s assets and liabilities.
Obtain authority to administer the estate: The Executor must apply to the Court to receive authority to administer the deceased’s estate. This is known as obtaining a ‘Grant of Probate’ or ‘Probate of the Will’.
Lodge income tax returns: Before the estate can be distributed, the Executor must ensure all tax returns for the deceased person have been completed and lodged – this often involves completing several tax returns, including a tax return for the estate itself.
Pay liabilities: The Executor must pay the liabilities and expenses of the estate, (for example, creditors, funeral expenses, income tax, fees for administering the estate and any out-of-pocket expenses). To do this, the Executor may need to sell some of the deceased’s assets, although the beneficiaries may choose to cover these expenses if they do not want the assets to be sold.
Establish trusts: The Executor is responsible for establishing trusts for beneficiaries if required, (for example, a trust is required if a beneficiary is a minor, or if there are specific instructions for a trust to be established in the Will).
Distribute the estate: Once the liabilities have been paid and the required trusts have been established, the Executor can distribute the remaining assets to the beneficiaries pursuant to the terms of the deceased’s last Will. The Executor usually has 12 months from the date of death to administer and distribute the estate. If this time limit is exceeded, the beneficiaries may have a right to claim interest from the Executor.
Do I need to publish a notice of intention to apply for Probate?
Yes. You need to publish a notice online indicating your intention to apply for Probate at least 14 days before your application is filed. Our Probate application lawyers will draft and submit the required notice to the Supreme Court of NSW on your behalf.
I’ve been appointed as an Executor, but I don’t want to act – what should I do?
If you do not want to act as Executor, you can resign from the position by signing a simple Court document.
Known as ‘renouncing’, you can only do this if you have not intermeddled (interfered) with the estate, so it is important to renounce sooner rather than later.
How long will it take to get Probate in NSW?
Applications for Probate filed by us are usually sealed and returned within 3 to 4 weeks. However, processing times may vary depending on the number of applications before the Supreme Court at any given time.
How much does Probate cost in NSW?
When obtaining a Grant of Probate in NSW, there are three separate costs. Here is a breakdown:
Filing fee: The filing fee is paid to the Supreme Court of NSW when the application is filed. This fee is based on the ‘total value’ of the deceased’s estate as at the date of their death.
Advertising fee: The Executor must publish a notice of intention to apply for Probate at least 14 days before the Probate application is filed. The Supreme Court of NSW charges a small fee to publish this notice.
Professional fee: Our professional fee is fixed by the Supreme Court of NSW and differs depending on the ‘total value’ of the deceased’s estate.
Do I have to pay the Probate fees myself?
If you work with us you will be relieved to know you will not need to pay our fees or any expenses, including the Supreme Court filing fee, until after Probate has been received.
We simply ask that you reimburse us from the estate after Probate has been received. That means you will not be out of pocket at any time.
Can I keep the original Death Certificate?
The original Death Certificate is submitted to the Supreme Court of NSW as part of the Probate application. As part of our Probate service, we seek the original Death Certificate is returned by the Supreme Court when the Grant of Probate is received.
How do I get the Death Certificate?
The appointed Funeral Director will apply for the Death Certificate, which will be delivered to a person known as the ‘informant’ – this is normally the deceased’s next-of-kin and is the person who provided the Funeral Director with the necessary information to file the death record.
What should I do if a solicitor is holding the Will?
Often, the solicitors who prepared the Will for the deceased hold on to it for safe keeping, but this does not mean you need to engage the services of those solicitors to obtain Probate. As part of our Probate service, we can gain access to the Will on your behalf.
I only have a copy of the Will, not the original – can I use this to apply for Probate?
If only a copy of the Will can be found, the Court presumes the original was destroyed by the deceased prior to their death.
If there is sufficient evidence to prove the Will was not destroyed the presumption can be overturned in which case the copy can be used to obtain Probate until the original is located (if ever).
Someone has requested a copy of the Will – as an Executor, do I need to give it to them?
If you are an Executor, people such as family members or friends of the deceased may ask if they can receive a copy of the Will.
Only certain people are entitled to inspect or receive a copy of the Will – at their expense.
A person is entitled to view or receive a copy of a Will if they are:
- Named or referred to in the Will
- Named or referred to in an earlier Will as a beneficiary
- The surviving spouse, de-facto or child of the deceased person
- The parent or guardian of the deceased person
- A person or creditor who may have a claim against the deceased person
- An attorney under the deceased person’s Enduring Power of Attorney
Once a Grant of Probate has been received, the Will becomes a publicly available document, meaning anyone can obtain a copy from the Supreme Court of NSW for a set fee.
What is an informal Will?
A Will is a written document that contains the testamentary intentions of the deceased. In NSW, a Will must adhere to certain formal requirements for it to be properly made. These requirements are set out in the Succession Act 2006 (NSW), and include, among other things, that the Will must be in writing, and must be signed and witnessed in a particular way.
If a Will does not meet these formal requirements, the document may still be admitted for Probate as an informal Will.
What is a requisition from the Supreme Court of NSW?
A requisition from the Supreme Court is a notice that some or all of the requirements under the Probate and Administration Act 1898 (NSW) and/or the Supreme Court Act 1970 (NSW) have not been complied with.
In this situation, the Executor needs to identify the issues and file additional and/or amended documents to address the non-compliance.
Where do I go to sign the Probate application?
You can sign the Probate application in the presence of one of our lawyers, free of charge.
Alternatively, you may wish to sign the documents in the presence of a Justice of the Peace (JP) if this is more convenient for you. Should you prefer to sign in the presence of a JP we will give you full instructions regarding how the documents need to be signed.
Good to Know: Most police stations, pharmacies and local courts offer a free JP service. Make sure you call ahead though, as you may need to schedule an appointment.
The Will has not been signed – can I still obtain Probate?
If the Will is not signed but there is sufficient evidence to show that the document was intended to be the deceased’s last Will the formal requirements may be dispensed with so the unsigned Will can be Probated.
If the Court is not satisfied the document was intended to be the deceased’s last Will, and the deceased did not leave a prior Will, an application for Letters of Administration will need to be made.
I am a beneficiary, but the Executor has not obtained Probate – is there anything I can do?
If 3 months has passed since the deceased’s death and the named Executor has not applied for probate, you can apply to the Court – if you have an interest in the deceased’s estate – to receive a special grant, known as a grant of Letters of Administration with the Will annexed, which will empower you to deal with the deceased’s estate as if you were the named Executor.
What does it mean to Reseal a Grant of Probate?
If a Grant of Probate has been obtained in a state other than NSW or a different country, it does not have any legal effect in NSW. In this situation, the Supreme Court of NSW can ‘Reseal’ the Grant of Probate, as long as the original grant was made in a Commonwealth country or a different State within Australia.
After the Grant of Probate has been Resealed, it will have the same effect as if the grant was originally received in NSW.
The deceased had a Power of Attorney and a Will – which document takes priority?
A Power of Attorney is a document that allows a person (called the Principal) to appoint another person (called the Attorney) to make financial decisions on their behalf. Typically, the Attorney makes financial decisions on behalf of the Principal when the Principal is unable to make financial decisions due to illness or loss of mental capacity.
When the Principal dies, the Power of Attorney is no longer valid, which means the Attorney loses the power to make financial decisions on behalf of the deceased. Decisions of this kind must now be made by the Executor appointed in the deceased’s last Will.
The deceased left assets in another State – do I need Probate in that State?
To receive a Grant of Probate in NSW, the deceased must have left assets in this State. If Probate has already been received in NSW and the deceased had assets in other States, it may be necessary to have the NSW grant resealed in the State where the other assets are held. This may or may not be required depending on the asset holder’s requirements.
If the deceased didn’t leave assets in NSW, there is no need for you to obtain Probate in NSW – instead, an application should be filed in the State where the assets are held.