Why You Might Need a Probate Lawyer Even if You Think You Do Not

Following bereavement, there are several tasks that need to be considered and completed, which can make an already difficult time even more stressful. Among the things that might need to be considered are whether probate is needed, what is involved in the process and how a probate solicitor might help.

The expert probate lawyers at Szabo & Associates Solicitors regularly assist clients in obtaining a grant of probate from the NSW Supreme Court and assisting in administering the estate. In complex cases, such as where there is a dispute concerning the grant of probate, we can offer expert advice and advocacy to achieve the best possible outcome for clients.

Following an overview of probate, an illustrated case will provide an example of where the specialised knowledge of a probate lawyer appointed as a joint Executor helped save the day for a deceased person’s estate.

What is a grant of probate?

A grant of probate is the legal document that authorises the Executor of a Will to exercise their duty to gather the deceased person’s assets, settle any debts of the estate and distribute the balance to the beneficiaries named in the Will.

Is a grant of probate always necessary?

If there is no Will an application for Letters of Administration will normally be required rather than a grant of probate. If there is a Will, probate is generally required if the deceased owned a property; had accounts with banks in excess of approximately $50000; substantial shareholdings exceeding $15000; or there is a substantial superannuation balance receivable by the estate.

Probate is not required where there are insufficient assets to justify a grant. Also, there may be no need to apply for a grant of probate where the property was owned as ‘joint tenants’ as this will pass automatically to the surviving joint tenant.  If the property was owned as ‘tenants in common', it would form part of the estate.

The NSW Supreme Court can only deal with an application for a grant of probate if the deceased owned assets in NSW. Where assets were owned outside of NSW it may be necessary to make an application in the jurisdiction where the assets are. If a grant of probate has already been obtained in NSW it may be possible to apply for a ‘reseal’ of the NSW grant in that jurisdiction.

Case Study: The Estate of Raymond David (2022)

This recent case concerned Raymond David and his son. They jointly owned a property in Bringelly, Sydney. In December 2021 they had entered into a contract to sell the property for $6 million. A deposit of $300,000 had been paid on exchange of a contract by the purchasers, with completion scheduled for 31st January 2022. The purchasers had also taken out a substantial mortgage to enable the purchase

Unfortunately, Raymond David died unexpectedly on 10th January, putting the completion of the sale in serious doubt. The contract for sale did not include a clause providing for its rescission in the event of the seller's death. This meant that Raymond’s son and his estate had to pay damages because of the non-performance of their contractual obligations. Moreover, the damages could be compounded by interest charges the purchasers would be liable for.

As it transpired, Raymond David had appointed an experienced probate solicitor as a joint Executor of his Will. Understanding the seriousness of the situation and the availability of a statutory process for emergencies, the joint Executor commenced proceedings in the Supreme Court seeking to be urgently appointed as administrators of Raymond David’s Will given the ‘exceptional circumstances'. Without the grant of probate, both the sellers, including the estate and purchaser faced unnecessary losses

The Court granted the application, albeit with some reasonable limitations. The judge noted that this was ‘an appropriate case in which to make the appointment in order to preserve the assets of the estate...’ and to prevent both parties from losing from the sale not proceeding.

The case demonstrates both the authority of the Court to allow an urgent grant in exceptional circumstances and how the expertise of a probate lawyer can be of service.

Do you need a probate solicitor in NSW?

The short answer to whether you need to appoint a probate solicitor to obtain a grant of probate and assist in administering the estate is that you do not legally have to do so. However, asking whether it would be advisable to do may provide a different answer.

The process of obtaining probate is a formal one requiring several steps for the Executor to take. Failure to complete all the steps in a timely manner can lead to delays and additional cost. 

Executors are also legally responsible for administering the estate and risk being made personally liable for any mistakes or oversights.

Probate can be contentious. This can occur where it is suspected that there are issues with the Will, such as it not being the last version or the deceased lacking the required mental capacity to make it. Perhaps it is suspected it is a forgery or made under undue influence by someone.  Contentious probate is an area which requires expert legal assistance.

Some of the services where a professional can add further value are illustrated in the above narrative. These include:

• conducting a title search to confirm how any property is owned to determine whether it is part of the estate or not;
• reseal of a NSW grant of probate in another jurisdiction where there are assets out of state;
• providing expert knowledge of the statutes in unusual circumstances, as in the illustrated case.

These are among the reasons why the majority of Executors appoint a probate solicitor to support them.

Contact our Probate Lawyers in Sydney, NSW

At Szabo & Associates Solicitors we have many years’ experience advising on all aspects of Wills and succession matters. Our team of lawyers are very familiar with administering the terms of a Will and in assisting Executors in fulfilling their duties. If you have any questions about Wills, probate or becoming an Executor please contact us on 02 9281 5088 or complete the online contact form.