What is Probate?
A Grant of Probate is an official document issued by the Supreme Court of NSW relating to the estate of a deceased person. It serves as evidence that the final will of the deceased has been proved to the Court and that the Executor has been properly identified and has sworn to administer the estate according to the Will and to the law, generally.
It is often required in an estate where the cash assets exceed $50,000 or property needs to be sold for the proceeds to be divided up.
What do I need for Probate?
The basic requirements for an application for a Grant of Probate are below, but it is not exhaustive and what is actually required will depend on the circumstances of each case. The majority of straight forward applications require:
- the original will of the deceased, if it is available, but there have been many things held to constitute the last will of a person, including for example, a will they have typed on their computer which they intended to be their last will.
- the original death certificate of the deceased. Usually the funeral home arranges for this to issue and it takes between 2 to 4 weeks to issue from the NSW Registry of Births, Deaths & Marriages.
- a list of the assets and liabilities of the deceased. This list will form part of the court documents that are prepared as part of the application, including a summons, affidavit of executor and draft probate parchment.
- a person entitled to make the application. This is usually one or all of the executors named in the will. If they have all died, or don't wish to act in the role (the terminology used is "renounced the role of executor") then a beneficiary of the estate can make application, and they would be termed the Administrator, rather than the Executor.
- the court filing fee. The amount of the fee is determined by the gross value of the estate. The fees can be found on the Supreme Court's website (NSW). The fee can be in excess of $1,000.
Where do I find the Will?
People usually keep their wills in one of four places:
- within their important papers at home, in a folder in a drawer somewhere
- with their solicitor (usually the solicitor who drafted the will)
- at the bank in a safety deposit box
- with the NSW Trustee & Guardian, if they appointed the Trustee as their Executor.
If you are the Executor named in a will and you hold the original death certificate of the deceased, you are entitled to collect the original will from whomever is holding it.
If, for example, it is held by the deceased's solicitor, but you want to instruct your own solicitor to make application for the grant, you can either attend upon the solicitor yourself, with your identification and the death certificate and collect the will, or, if you intend to instruct Banksia Law Solicitors to assist you with the estate, we will have you sign a simple authority, enabling us to collect the will on your behalf.
If you are mentioned in the will, or would be entitled to a share of the estate if the deceased died without a will (eg spouse or bloodline family members), you are entitled to a copy of the deceased person's will.
Contact us for more information about when you need a Grant of Probate and obtaining a copy of a will after someone has died, including related topics such as lost wills, copy wills and informal wills (which include wills saved on a computer and text message wills).
What if there is no Will, but the bank is saying I need Probate?
If there is no Will to be found, you make an application for a Grant of Letters of Administration. It is very similar to an application for a Grant of Probate, but there are a few extra forms to be completed, and possibly a bond to be paid into Court. Only a person entitled to a share of the estate under the laws of intestacy are allowed to make an application. That person will usually be the spouse, parent, sibling or child of the deceased, depending on who in the family has survived the deceased person. Don't hesitate to contact us for more information.
Do you need to make your own will?
Contact us to begin preparation of your will, to ensure your assets go to the people you want to benefit from your life's work, rather than it passing to certain classes of relatives or spouses (past and present) predetermined by State laws. We can also prepare Powers of Attorney and Appointments of Enduring Guardian, to ensure there is someone you trust who has authority to make decisions regarding your finances, health and welfare in your best interests, when you no longer can.