If you reside in NSW and are dealing with the Will of a loved one, you might have come across the term Probate, and you might be wondering what is Probate NSW?
Probate is one out of two legal options under Grant of Representation that allows a legal representative to deal with the assets (property, shares, bank accounts) listed in a Will. The Grant of Representation consists of Probate in cases where there is a Will, and Letters of Administration in cases where there is no Will.
Probate is the legal process of administering the estate of a deceased person, resolving any claims and ultimately distributing the deceased person’s property under the declaration of the deceased’s Last Will & Testament. A probate court decides the legal validity of a testator’s will and grants its approval by granting probate to the executors. Until such time as probate is granted and after any due taxes have been deducted, the assets and property forming the wealth of the estate, remains locked – out of the reach of any beneficiaries.
If you are seeking the answer to what is probate NSW, then it is likely that you are handling the legalities around a Will. Probate is granted by the Supreme Court of NSW. To answer the question of what is Probate NSW in simple terms, it is the court order that: –
- validates the Will,
- allows the executor/administrator to distribute assets to beneficiaries,
- decides if the Will in is the last Will made by the deceased person, and
- ensures that there are no objections to the Will in consideration.
According to Section 61 of the Probation and Administration Act (1898) all assets of the deceased person, including personal property and real estate, are vested in the NSW Trustee.
The legal representative, also known as the Executor, as named in the Will is obliged to distribute the assets listed in the Will to all nominated beneficiaries. To be eligible to carry out the duties and responsibilities, the Executor needs to receive a Grant of Probate by the Supreme Court of NSW. Upon obtaining Probate, all assets are vested in the name of the Executor.
An Administrator is a legal representative appointed by the Court, in cases where an Executor has not been named in the Will, or if for any reason the Executor cannot perform his/her duties. In either case, the Executor or Administrator needs a Probate to facilitate the process of distribution of assets. That is to say, the question of ‘what is Probate NSW’ is relevant regardless of whether you are an Executor, Administrator, or beneficiary.
Probate is a critical legal step when dealing with a Will. Now that you have an idea about what is Probate NSW, it is also important to understand how to obtain Probate in NSW. The following section provides an overview of the application process to obtain a Grant of Probate in NSW.
How to Apply for Probate
The Executor needs to apply for Probate in order to proceed with his legal duties. Solicitors not only assist Executors in understanding what is Probate NSW, but also in applying for Probate since most of the steps need to be completed with the Supreme Court of NSW. Applications need to be filed at the Supreme Court of New South Wales registry, by post or in person.
The steps include: –
- Gathering Documents: – a) The original will and codicils (if any), b) Original death certificate, c) Inventory of property, and d) Affidavit of the executor. The affidavit provides proof to the court that the nominated Executor will administer the estate efficiently, and in compliance with the law.
- Probate notice: – You need to publish a Probate notice online stating your intention to apply for a grant. This notice must be published at least 14 days before lodging an application for a Grant of Probate. When your notice is published, a case number will be assigned to you.
- Probate application: – You can apply for a Grant of Probate 14 days after publishing the notice for an intended application online.
In case any requirement of the application is not fulfilled, the Supreme Court of NSW issues a requisition. A requisition is a notice from the Court, informing that some requirements from the Probate and Administration Act (1988) have not been complied with. The registrar will raise a requisition for additional details to be provided. A Grant of Probate will not be issued until the requisition has been answered. To ensure swift correspondence with the Court, you need to provide your best email ID along with your application.
The Probate will be posted back to you within 20 working days. In case of incomplete applications and/or documents, it takes longer for the Probate to be granted.
Potential Challenges When Applying for Probate
In certain cases, the Grant of Probate can be delayed if there are problems with the Will. For instance, in case the Will is damaged, or if it has not been witnessed properly, the Grant of Probate will be significantly delayed. Additionally, there can be a delay in obtaining Probate in cases where an informal Will is being used. An informal Will consists of a document that enlists a deceased person’s wishes but does not satisfy the requirements of a valid Will that is recognised legally.
Why Apply for Probate Immediately?
Oftentimes the assets listed on the Will entail expenses that need to be paid by the Executor. To ensure that the Executor fulfills his/her obligations of distributing assets to beneficiaries, it is imperative to apply for Probate as soon as possible. Applications for Grant of Probate must be filed within 6 months from the date of death.
Seek Legal Advice on What is Probate NSW
To be tasked with the obligations of distributing assets might seem daunting. Understanding legal jargon and knowing what is Probate NSW, coupled with the task of submitting the application for Grant of Probate is complex.
You need to ensure that all forms are completed accurately, and that all forms have been signed by an authorised witness. Solicitors help simplify this process of obtaining a Probate. Seeking legal advice will reduce the chances of the Court issuing a requisition. Requisitions lead to unnecessary delays, and solicitors can help avoid such delays. Once the Probate is granted, solicitors can further help Executors distribute the assets to beneficiaries.
At JB Solicitors, our Family Law experts will expedite the process of obtaining Probate by helping you out every step of the way. Our fixed-free pricing will give you a clear sense of the costs from the start, ensuring a hassle-free process.
If you want to have a detailed conversation on what is Probate NSW, contact JB Solicitors today to speak with our friendly and experienced family lawyers.
