What Happens After Probate Is Granted: Every Goal of a Will

Generally, probate validates the Will of a deceased person. It can be a complex and time-consuming process, and it can significantly impact the lives of the deceased’s loved ones. However, aside from the lengthy process, probate is akin to the finish line that every executor wants to reach. Hence, obtaining probate should be a priority for every executor and know what happens after probate is granted in NSW.

After the court grants probate, it will allow the executor to collect the deceased’s estate assets, settle debts and liabilities, and finalise estate distribution to beneficiaries. Then, they can finish their duty as an executor and administrator, right? Not quite.

Executors should take note that Will contests and challenges can happen. If there is a challenge, and the executor has distributed the assets, they are personally liable for replacing them.

So, if you’re an executor or beneficiary who wants to know what happens after probate is granted, then read on.

What Can Help Validate a Will?

Before someone asks themselves, “What happens after probate is granted in NSW’ they need to know what can help validate a Will. For a Will to be valid, these requirements must be satisfied:

1. The person making the Will (testator) must be over 18 years old and have the mental capacity to understand the nature and effect of the Will.
2. The testator must intend to create a legally binding document that disposes of their assets after death.
3. The Will must be in writing, either typed or handwritten.
4. The testator or someone else must sign the Will in their presence and at their direction.
5. There must be two witnesses over 18 years old who will witness the signing of the Will. These witnesses should not be beneficiaries of the Will or relatives of the testator.
6. The testator must have revoked any previous Wills.

If the Will does not meet any of these requirements, the Will may be invalid. If this is the case, the court will distribute the estate under the intestacy rules under the Succession Act 2006 (NSW). But what about Wills made overseas? Thankfully, they are generally valid in NSW if it is valid in the country where they were made. 

What Happens After Probate Is Granted in NSW: Collection of Assets

Once probate has been granted, the executor can collect the deceased’s assets and distribute the estate under the Will’s instructions. The process of collecting and distributing the estate may involve the following steps:

1. Identify and value assets. The executor must identify all the estate assets, including real estate, personal property, bank accounts and other bank accounts in financial institutions, superannuation fund, and investments. The assets must be valued, and any debts or liabilities must be deducted from the total value of the estate.
2. Sell assets if necessary. Sometimes, the testator can instruct the executor to sell certain assets. The money from assets sold can be given as inheritance or used to pay outstanding debts, bills, tax, or pay income tax and capital gains tax. It can also be used to pay funeral expenses or any other services used for the probate process.
3. Distribute the estate. Once all the assets have been collected and debts paid, the executor can distribute the estate and estate money to the beneficiaries according to the Will. The process of distribution may be different for real estate and personal property.
4. Keep records. As an executor, you must keep accurate records of all transactions related to the estate, including receipts, payments, and distributions. You will never know when you will need these documents.

The executor has a fiduciary duty to act in the best interests of the beneficiaries and must follow the instructions in the Will. So, it’s important to follow the steps above to demonstrate fiduciary duty.

What Happens After Probate Is Granted: Questioning the Testator

Sometimes, beneficiaries or even executors might spot something fishy about how the testator wrote the Will. Were there inconsistencies, unfamiliar terms, or even missing clauses? Disputes about the validity of a Will in NSW, Australia, can arise when someone challenges the Will’s legal validity or interpretation. Common reasons may include the following:

1. Lack of testamentary capacity. This exists when the testator does not have the mental capacity to make a valid Will.
2. Undue influence. When the testator was coerced or influenced by someone to make a will that does not reflect their true wishes, there is undue influence in the creation of the Will.
3. Fraud. The Will is fraudulent when the testator’s signature is forged or altered.
4. Improper execution. The Will was not executed properly, so it is not legally valid.

Contesting or Challenging the Will

Now, what happens after probate is granted in NSW, but someone wants to contest or challenge the Will?

If a person questions the validity of a will, they can make an application under the family provision chapter of the Succession Act or challenge the Will in court. The Probate Registry NSW has a facility for the lodgement of a Will in the testator’s lifetime, although this is rarely used.

A successful Will challenge will result in estate distribution by the intestacy rules.

If someone believes they weren’t provided fairly in a Will, they can formally contest the Will or claim the estate. The Supreme Court of NSW interprets Wills made or contested in NSW, and the executor or a party interested in the estate may apply to the court to resolve it. 

People who challenge the Will must prove to the court that the Will is invalid. If a challenge to a Will is successful and the Will is found to be invalid by a court, the estate will, again, be distributed according to the intestacy rules. It is important to note that if there is a dispute or challenge to the will, the executor must wait until the court resolves it before distributing any assets.

Applying for Probate

The probate application process is important if you want to know what happens after probate is granted. You couldn’t just skip to the last part of getting probate if you don’t follow the following steps:

1. The executor must gather all the necessary supporting documents, including the original Will, death certificate, and any other relevant documents.
2. Secondly, executors must publish a probate notice in the NSW Online Registry, also called a ‘Notice of intended application’. Afterwards, the executor will wait for 14 days.
3. Now, the executor can submit a probate application to the Supreme Court of NSW. The court may issue requisitions, which are requests for additional information or documents for the application. The executor must respond to these requests promptly.
4. The executor must pay the fee for applying for a grant of probate, which will depend on the value of the assets.
5. Finally, the executor can wait for the probate to be granted. The court will review the application and grant probate if everything is in order. The time it takes to process probate in NSW varies, and it is advisable to check the current processing times for probate at the NSW Supreme Court.

Get Advice from a Will and Estate Lawyer

Isn’t probate a long process? Yes, it is. But getting this for a Will means you respect the wishes of the testator and their beneficiaries. To tackle this mountain of a responsibility, you will need a Wills and estate lawyer from our firm.

JB Solicitor’s Wills and estate lawyers can explain what happens after probate is granted in NSW, help you navigate the probate application process, assist with the estate administration process, and provide legal representation if there are any disputes or challenges to the Will. Don’t obtain probate without legal advice.

Schedule a consultation and let us help you carry the obligation to obtain probate today.