7 Essential Questions Every Executor Needs Answers to About Probate

Probate is the legal and financial process of dealing with the property, money and possessions of a person who has died. A Grant of Probate is a Court Order that confirms the validity of the deceased’s Will and the authority of the named Executor to carry out the terms of the Will. The Supreme Court issues Probate in NSW.

If the deceased did not make a valid Will, or if one cannot be found, it will not be appropriate to apply for a Grant of Probate. Instead it will be necessary to make an application for Letters of Administration to the Supreme Court. In essence, this means that an Administrator will be appointed by the Court to deal with the deceased’s estate in a similar way as an Executor of a Will, such as paying the debts, but distributing the net assets according to the intestacy rules rather than the instructions in the Will.

At Szabo & Associates Solicitors, dealing with these matters is a particular area of specialism, and we offer a complete service whichever processes of dealing with an estate are required.

1. Do you actually need a Grant of Probate?

As well as the situation where there is no valid Will, a Grant of Probate is not generally required in NSW when there are insufficient assets to justify it, or if all assets are owned in joint names. Where this is not the case, a Grant will be required if the deceased owned property such as land or a house or other substantial assets, including superannuation payable to their estate.

Low value assets

If the assets are not of a high value, and the Executor has not applied for a Grant of Probate financial institutions may require an indemnity from the Executor. Each institution will have its own threshold rules as to how much they are prepared to transfer to the Executor without a Grant.

Jointly owned assets

Where assets are owned as Joint Tenants with another person, Probate is not required as ownership of the asset will automatically pass to the survivor and will not form part of the deceased’s estate. This is fully explored in our blog ‘Estate Planning, Property Disputes and the Importance of Having the Right Type of Ownership’ here. 

Should an Executor still wish to obtain Probate for some reason it is open to them to do so.

2. Is it essential to appoint a lawyer for Probate?

Appointing a lawyer to apply for Probate is not a legal requirement but the process in obtaining a Grant involves a number of formal steps. Unless these are completed in an accurate and timely manner this can result in delays in the Grant. As a result, most Executors will appoint a lawyer to ensure that all the required documents are correctly filed with the Court.

It should also be noted that an Executor needs to comply with all their legal obligations to ensure they do not become personally liable to the estate’s beneficiaries.

3. What documents are required for a Probate Application?

Having notified the Court online of the intention to apply for a Grant of Probate, the application itself can be filed after 14 days. A number of important documents are required to be submitted to make a successful application including:

• Original Will - The original Will is required along with any signed amendments. If the original cannot be found a copy can be included but the circumstances will need to be set out in the Executor’s Affidavit.
• Executor’s Affidavit - This sworn statement will include background information to the application.
• Death Certificate - The original death certificate should be included along with a certified copy.
• Assets - An inventory of all the assets owned by the deceased in NSW with estimated values is required. Assets located in other jurisdictions can be noted separately.
• Summons of Probate - If the Will is being contested, any Summons should be included.

How much does an application cost?

The cost of an application depends on the gross value of the deceased’s estate.

4. What deadlines apply to making an application for a Grant of Probate?

Applications for Probate should be made within six months from the date of the deceased’s death. Failure to file the application with the Court means that Probate cannot be granted, and the Executor will be required to explain the reasons for the delay.

Where an Executor fails to apply in time for Probate, then a beneficiary or other person with an interest in the administration of an estate may be able to apply.

5. How long does it take to obtain a Grant of Probate?

The Grant of Probate process in NSW would normally take up to six weeks from filing the correct and complete information depending on Court workloads. To avoid delays, it is important to ensure that the correct forms are used, accurately completed and accompanied by all the necessary supporting documents.

Should the Court require any changes they will advise this in writing, but the application will effectively ‘lose its place’ and mean the process will be further extended.

6. What is a Reseal of Probate, and why might ‘resealing’ be necessary?

It is possible that a deceased may have owned assets in different locations. Where an estate has assets in another jurisdiction than NSW and Probate has already been obtained, it may not be necessary to make a new application for Grant of Probate. Applying for a Reseal of Probate allows the existing Probate to be resealed by the NSW Supreme Court, giving it the necessary validity in NSW.

7. What happens after a Grant of Probate has been made?

Once approved, the Executor will be forwarded the Grant of Probate and can carry out their further duties. Normally there is an expectation that distribution of the estate to its beneficiaries should be completed within 12 months.

Contact our Probate & Executor Solicitors in Sydney, NSW

Szabo & Associates Solicitors have many years of experience in advising on all aspects with regard to Wills, Probate and assisting Executors to fulfil their responsibilities. If you have any questions or need assistance in these matters, please call us on 02 9281 5088 or complete the online contact form.