Probate & Executor Solicitors Sydney, NSW: The Complete Guide to Probate and Executry

Probate is always necessary where the deceased has died owning real estate, unless it was owned under a joint tenancy. If the estate is small (that is to say that it is worth less than $15,000) or is straightforward to wind up, then there may be no need to seek a Grant of Probate. However, the holders of certain assets (such as banks) may require you to produce Grant of Probate before they will allow you to access certain assets.
If there is no contest to the application for Grant of Probate then the grant will be in ‘common form’ This means that it can be overturned or revoked in certain situations. If your application is contested then all parties with an interest will have the chance to take part in the court proceedings. In this case, the eventual grant is said to be in ‘solemn form’. If Probate is granted in solemn form, then it can only be revoked in certain exceptional circumstances.

When someone dies leaving assets in New South Wales, it is the duty of the executor named in their Will to gather their assets, distribute them according to the Will and to pay any liabilities. When the person dies, their property is deemed to vest in the NSW Trustee under the Probate and Administration Act 1898. In order for the executor to gain the authority to carry out their duty, the executor applies to the Supreme Court for a Grant of Probate.

Once Probate is granted, the deceased’s assets vest in the executor. This entitles them to handle the deceased’s assets. Once Probate has been granted, organisations holding the deceased’s assets (their Bank, the Department of Lands, Aged Care Facility or the Share Registry, for example) will release or transfer these assets into the executor’s name in order to allow them to carry out their duties.

Applications for Grants of Probate must be in the form laid down by law. The Supreme Court must be satisfied that the Probate and Administration Act and the Supreme Court Act have been complied with. As such, we recommend that you get in touch with us as soon as is practicable. Applications for Grants of Probate must be made within 6 months of the date of the deceased’s death, otherwise a sworn statement, explaining the reason for the delay, must be presented to the court.

If you have been appointed the executor of a deceased’s estate, and the estate has assets in another jurisdiction (another state or country) then you may already have obtained a Probate or its equivalent in that jurisdiction. Nowadays, it’s not uncommon for someone to die leaving assets in various locations, especially if the individual in question owned more than one property or they had investments.

Instead of making a fresh application for Grant of Probate in NSW, you can apply for ‘Reseal of Probate’. This allows the original grant, obtained elsewhere, to be ‘resealed’ with the seal of the Supreme Court of NSW.

A Grant of Probate is proof that the executor named in the Will has the legal authority to wind up the estate. Many organisations require to see this grant before they will allow the executor to handle the asset. In situations where the original Grant was obtained outside of NSW, Resealing the Grant validates it in NSW. When the Supreme Court reseals the Grant of Probate it is no longer treated as ‘foreign’ and must be accepted by all relevant bodies as though it had been made in NSW in the first place.

Once the Court has granted Probate, the executor must collect assets in the deceased’s estate. The next step is to pay all debts and taxes owed by the deceased. It’s important for Capital Gains Tax purposes to ascertain the date that the deceased acquired assets liable to CGT, and how much they cost. Funeral expenses must also be paid out of the estate at this point, as should the executor’s expenses.

Once these have been paid, the assets should be distributed according to the terms of the Will. It may be the case that various items from the deceased’s estate (such as their car, jewellery, furniture etc) may need to be sold. This is carried out by the executor

The executor is responsible for contacting financial institutions which hold the deceased’s investments and assets and liquidating these. In some situations, you may have to open a bank account into which the deceased’s assets are paid and from which payments are made.

For all enquiries about Probate, including Reseal of Probate in NSW, call Szabo & Associates Solicitors on 02 9281 5088 or book a consultation and see how we can help you.

There is a growing concern that people are not taking the time to consider how best to spend their inheritance. It was recently reported that Australia is currently experiencing a highly unusual level of the transfer of intergenerational wealth, and that many who are identified as beneficiaries in a Will may not prepared to manage their inheritance carefully.

The report also pointed out that the responsibility of allocating what can often be substantial funds left to family members in a Will, falls to the Executor. The difficulty, however, is that while the term is regularly used in the media, many people are unfamiliar with the role and the responsibilities it carries. This is particularly important for people who may have been approached to take on the role themselves.

At Szabo & Associates Solicitors, we appreciate that the decision to become an Executor can be a rather daunting one. This post outlines what people who have been asked to become an Executor should think about before accepting the role.

An Executor is someone that has been appointed in someone’s Will to administer their last wishes. More broadly speaking, an Executor is the person that will organise the estate of a deceased person and distribute any possessions that the deceased left to surviving family members.

What exactly does an Executor do?

When someone passes away, the person that they have appointed to be their Executor will begin the process of ingathering the deceased’s estate. This must all be set out in an ‘Inventory of Property’. This document will tend to include, among other things:

1. The deceased’s home;
2. Investments that the deceased had left behind, e.g. bank accounts and shares;
3. Furniture that was left in the deceased’s home; and,
4. Details of any insurance policies that the deceased had taken out.

After the Executor has prepared the inventory they must send this, along with other documents, to the courts in order to be granted Probate. Probate is the court’s permission for the Executor to carry out their duties, having been satisfied that among other things (i) the Will under which the Executor will act is valid; and (ii) the inventory of property has been completed.

It is only after the court has granted Probate that an Executor will be able to begin the process of satisfying any outstanding debts owed by the deceased’s estate. There is a pre-established hierarchy in which debts must be paid by an Executor on the deceased’s estate:

1. Funeral expenses must be paid first –in practice, they can often be paid before the courts grant probate;
2. Costs incurred in obtaining Probate –there will be a fee to be paid for the courts to verify the paperwork;
3. Tax liabilities; and,
4. Other debts.

When an Executor has satisfied all outstanding debts on the deceased’s estate, they must prepare what is known as a Distribution Report. This document details what property the Executor has sold in the payment of debts, and precisely what debts have been paid. Having completed this report, the Executor may then move on to honour the terms of the deceased’s Will and make the necessary payments to the beneficiaries. It is important to note that the Executor must provide a copy of the Distribution Report to the beneficiaries.

In view of the fact that an Executor carries out a number of very important jobs, it is advisable that an Executor is normally someone that is a close friend or relative of the deceased –it can be a tremendous help to the family where someone familiar is organising a deceased’s affairs.

It is not uncommon that solicitors act as the Executor for an estate. Their familiarity with the rules and procedures involved can make the process of applying for Probate, and administering the estate, much quicker than would otherwise be the case.

It is important to keep in mind that the role of Executor is one of some responsibility. If someone agrees to act as someone’s Executor, they are in fact taking legal responsibility for a deceased’s estate. The consequence of this is that, if there is any error in administering a deceased’s estate, then the Executor will be held personally responsible.

If someone is asked to become an Executor, they should take some time to consider whether or not they are prepared to accept the responsibility for someone else’s affairs. If they have already agreed to act as someone’s Executor, but have since had second thoughts, there are avenues to step down from the role. It is advisable that they speak with an experienced Solicitor as soon as possible if this is the case.

Being an Executor for an estate is not always easy. Not only does it involve the handling of a deceased’s affairs, but it can involve a lot of contact with grieving family members who may have a lot of questions regarding the content of a Will. On the other hand however, acting as an Executor can be an incredibly rewarding experience and may bring a great deal of comfort to the deceased’s family. It is vital that those considering taking on the role of Executor fully understand the nature of the role, and the responsibilities it carries.