How to get a Grant of Probate in NSW?

Losing a loved one or someone close is one of the hardest experiences that people have to overcome. Coping with the grief and loss is not easy, and can leave anyone in emotional, mental and even physical pain. What’s more challenging, however, is when you’ve been tasked with carrying out their final wishes that would require probate.

Going through the legal process of securing a grant of probate in New South Wales (NSW) whilst still grieving, can be quite overwhelming and stressful. But what is probate? More importantly, how do you get a grant of probate in NSW?

What is Probate?

In Australia, probate is the legal process of validating the Will of someone who passed away. A Grant of Probate is a proof that the Will is valid and that Supreme Court legally recognises your role to administer the estate according to the wishes set-out in the Will.

As the Executor, you will be responsible for managing the estate and the settlement of financial obligations that were left behind by the deceased. This includes the distribution of assets, clearing of liabilities, transferring properties and even securing the guardianship for children.

Who needs a Grant of Probate?

The need to apply for Grant of Probate depends on the type, size and value of the estate. In general, a grant of probate is required if the estate is above the threshold. If the estate meets the probate requirements, then the Executor will need to apply for Grant of Probate in order to collect the deceased’s assets and funds and distribute the same.

Often, organisations where the assets and funds are held require probate to protect themselves. Probate gives them the guarantee that they will be turning over the assets to the legally authorised Executor.

In addition, the Land Registry requires a grant of probate before you can transfer real property unless it is owned jointly. Moreover, if the deceased left behind numerous shares, the organisation holding the shares may also require probate.

When is Probate not required?

An application for grant of Probate is not required if the assets of the deceased are of minimal amount, say, for example, motor vehicle or personal effects. Hence, the production of the death certificate and Will usually suffice for the release or transfer of assets to the Executor.

Also, grant of probate will not be required if all the estate of the deceased are jointly owned with another person who is still alive. In this case, ownership of all the joint assets will be turned over to the surviving owner.

How to apply for a Grant of Probate in NSW?

Every state and territory in Australia has different policies for administering probate. For Grant of Probate applications in NSW, the steps usually involve:

Obtaining the original Will and Death Certificate of the deceased
Publishing an online statutory Notice of Intention to apply for Probate on the Supreme Court’s Online Registry
Completing the required documents:

Summons for Probate
Affidavit of the Executor
Inventory of Assets
Grant

Filing the probate application with the Supreme Court of NSW Registry 14 days after publication of the online notice

Also, you must file your application for Grant of Probate within 6 months of the deceased person’s passing. Should there be any delay, you must provide an explanation to the court explaining the reasons for the delay. Moreover, you must make sure to complete all the necessary probate documents accurately to avoid requisitions or questions raised by the Supreme Court.

Review of Grant of Probate applications, particularly in NSW, can be quite rigorous. Any missing information that results in requisitions can cause costly delays. Your request for a Grant of Probate may not be approved if the Supreme Court is not satisfied with the evidence that you have provided to respond to the requisitions. The Court may even dismiss your application if you fail to secure an extension of time to respond to the requisitions.

What happens after you receive the Grant of Probate in NSW?

Once your request for probate has been granted, you, as Executor, must start collecting all the estate assets and funds. Publishing a notice of intended distribution must be made before administering the estate. This gives the Executors 30 days to wait for any claims by creditors or challenge the estate.

Notifying the public about said intention not only ensures that all outstanding debts are realised, but also protects the remaining assets from future claims. More importantly, it protects the Executor from any personal liability should any claim be made after the 30-day waiting period.

After identifying all the assets, you have to clear all the outstanding financial obligations, e.g., debts, taxes, and expenses (including funeral expenses). When necessary, you may also have to sell some of the assets to raise more funds to cover the liabilities.

Executors usually have 12 months or “the Executor’s year,” to distribute all the remaining assets according to the Will, unless:

there are properties held in other territories
you are unable to reach the beneficiaries
the estate is bankrupt
there is a property that needs to be sold
the Will is being contested
some legal papers cannot be found

Under these circumstances, distribution of the estate assets may take longer than 12 months.

The Executor must also prepare a report and statement to the beneficiaries once they have distributed all the assets. Your report must identify all the estate assets and funds collected, and the settled liabilities. In addition, the Executor must include the amount raised if assets have been sold.

Finally, the Executor must wind up the estate and lodge the drawn up accounts with the Probate Registry.

Why choose VC Lawyers

Applying for a Grant of Probate in NSW can be quite a daunting task because of the strict court policies and requirements. Engaging the legal assistance of Probate specialists can help you achieve a successful application and a less stressful administration of the estate.

VC Lawyers provides full legal support in Wills and Estates, including applications for Grant of Probate and Letters of Administration. Our Solicitors are experienced in Probate proceedings and offer practical advice and guidance to give the most beneficial legal outcome.

Talk to us to find out how we can help you carry out the wishes of your loved ones properly, and ensure the interests of the beneficiaries are completely protected.

NB: This blog post is neither a legal advice nor intended to be such, and is only for general information. The same should not also be taken as a financial or commercial advice. The reader must personally consult their professional adviser/s on the contents of this blog post. VC Lawyers is not liable for any loss or damage, direct or consequential, as a result of the reader’s or a third person’s misconstruction of the wordings or use/misuse of the contents of this blog post.