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If you have any questions about Probate that are not answered below, please don't hesitate to get in touch, we're here to make probate as simple as possible.
The Grant of Probate is a document which consist of a cover page, a copy of the Last Will of the deceased person and an inventory of the deceased person’s property. Once this document is stamped by the Supreme Court of NSW it gives the nominated executor the power to deal with the assets and the liabilities of the deceased.
The process of obtaining the NSW Grant of Probate confirms the validity of the Will, the identity of the executor and the assets and liabilities of the deceased.
Various organisations ask for the Grant of Probate before they hand over assets which they hold for the deceased person.
You might need the NSW Grant of Probate if the deceased held assets requiring the Grant of Probate for their release. Asset holders such as banks, share registries, nursing homes, the Land Titles office (Land and Property Information NSW) and other financial institutions may wish to indemnify themselves by asking the executor, or next of kin, to provide a certified copy of the Grant of Probate before they hand over the assets.
The Supreme Court of NSW does not force all executors to obtain probate in NSW.
The first step in the process, lodging the online notice of intended application for Grant of Probate, necessitates that 2 weeks pass before the executor submits their application for Letters of Administration to give enough notice to any potential creditors or claimants on the estate.
After the application is submitted it can take anywhere from 2-6 weeks, depending on how busy the Supreme Court of NSW is, before the Grant is issued.
Executors are expected to apply for the Grant of Probate within 6 months of the death of the deceased.
If an application for probate is made outside of this time then the court will require an explanation of the reason for the delay. We can assist you in this. Simply write us a message here.
There is no general depository of Wills in New South Wales. As such, the Will can be anywhere.
Generally, the solicitors who drafted the Will may have a copy. Any accountants the deceased may have used could also be holding a copy of the Will. Safety deposit boxes in banks might also hold the Will.
If you are the estate executor, we recommend that you make a thorough search of the deceased person’s personal documents to try to find the Will.
In NSW in order for a Will to be valid it must:
It is possible to obtain probate of a Will which does not satisfy the above criteria. This is called an ‘informal Will’. If you find yourself in such a position, we can still obtain a Grant for you. Simply write us a message here.
Some wills provide for an extra entitlement to the executor to account for their pains and troubles in fullfilling their duty as executor.
If the will does not provide any such entitlement, it's still possible for the executor to obtain commission for their work.
Read more about Executor's Commission.
The executor has the right to the last Will of the deceased person and a solicitor must hand it over to you.
You are not obligated to use the services of any solicitor in NSW, even if the Will names a particular solicitor who must be used.
If you find yourself in such a situation simply write us a message here.
In NSW Land and Property Information (LPI NSW) requires that you obtain a NSW Grant of Probate in these two scenarios:
The actual title deed/certificate of title will state what capacity the deceased held the property in. Otherwise, you can call LPI NSW on 1300 052 637 to find out this information.
If the deceased was listed as a joint tenant and the other joint tenant is still alive, the property does not form part of the deceased’s estate and LPI NSW does not require that you provide a copy of the Grant of Probate to transfer the property to the surviving joint tenant. You will simply need to fill out a ‘Notification of Death’ form on their website and mail it in to them with a certified copy of the death certificate.
Many organisations will ask to provide a Grant of Probate as a way to indemnify themselves against possible claims by third parties that they gave away the deceased’s assets to the wrong person.
These organisations, such as banks, nursing homes, share registries, will rely upon the Supreme Court of NSW’s processes of testing the validity of the Will in order to be satisfied that they are releasing assets to the correct person, the estate executor or administrator.
Although it may seem like a hassle, you may imagine the myriad of ways in which enterprising individuals have throughout history defrauded such organisations resulting in the requirement of this fact-checking process that the Supreme Court of NSW now conducts.
If you don’t wish to act as the estate executor no one will force you.
You are able to renounce your executorship and allow the named substitute executor to act in your place. If a Will does not name a joint executor, or a substitute executor, then the appropriate application is called Letters of Administration with the Will Annexed and and an administrator will be appointed.
Contact us to find out about the repercussions of renouncing your executorship.
Although asset holders such as banks, share registries and nursing homes may sometimes deposit or write out cheques directly to the beneficiaries of the estate, they are much more likely to issue cheque payable to “The Estate”.
The executor’s personal bank account will not be able to accept a cheque payable to “The Estate” and they will need to set up a “Deceased Estate Account”. Executors are generally able to set up these accounts at most retail bank branches.
A codicil is an additional Will which generally does not cancel the last Will of the deceased, but either amends the last Will or adds an additional paragraph(s) to the last Will.
Just like a normal Will the codicil needs to be signed by the will maker and witnessed by two witnesses. A codicil which does not satisfy these requirements may nevertheless be regarded by the Court as an ‘informal codicil’. If you think that the deceased left an ‘informal codicil’ you can write us a message here.
The Power of Attorney (POA) ceased upon death.
If you had the POA of the deceased and are also named as the executor, you can certainly apply for probate.
The POA is not recognised as having any power in relation to obtaining probate or estate administration.
Generally, an executor has 12 months from the date of death to distribute the estate. This is known as ‘the executor’s year’.
However, for various reasons the executor may have been delayed and has not distributed the estate within this time frame.
The online notice of intended application for probate allows creditors, and any estate challengers, to know where to send their enquiries. It notifies the public of your intention to make the application for probate. Whilst this used to be done in the newspapers it is now all done on the Supreme Court of NSW online registry.
The online notice of intended distribution of an estate allows executors to take advantage of ‘protection from personal liability’ if they wait for 30 days after this notice, and 6 months from the date of death of the deceased, to distribute the estate assets to the estate beneficiaries. This means that should a creditor, or claimant on the estate, come along after this period, and you have published this online notice, you will be protected from claims personally. However, creditors and claimants may still go after the estate beneficiaries. You should seek legal advice if you have any concerns of this nature.