The passing away of a loved one is always a challenging and emotional time for you and your loved ones.
During the stress of this period, the matter of their Will and the legalities involved can easily add to this stress. Accordingly, a common issue that comes up all the time involving Wills involves a Grant of Probate in NSW.
The purpose of this article is to hopefully make your life a bit easier and provide you with everything you need to know regarding ‘When is probate required in NSW?’
What Is Probate In NSW?
Before answering the question of ‘when is probate required in NSW’, It would be helpful first to understand what exactly probate is.
‘Probate’, or what is formally known as a Grant of Probate, is a court order that:
- Confirms the legal validity of a Will
- Confirms the death of the person who made the Will
- Contains the authority of the Executor to carry out the terms of the Will
The Supreme Court uses a Grant of Probate in each respective State or Territory.
When Is Probate Required In NSW?
You may be wondering, when is probate required in NSW?
Generally speaking, probate is required when the asset holder requires it. There may be government regulations that require it or even a liability risk on their behalf.
There are some typical assets and situations where probate is generally required in NSW. These include:
- Bank accounts that exceed $50,000 – However, this can vary depending on the financial institution; and
- In the case of a house or land; and
- Share portfolios that exceed $15,000; and
- A superannuation fund that is substantial and payable to the estate.
When Is Probate Not Required In NSW?
There are some circumstances where probate is not required in NSW. The most typical situations when probate is not needed are where there are insufficient assets to justify a Grant of Probate or when all of the assets are jointly owned.
Low-Value Assets: This is where the assets of an estate are of a value low enough to where they do not meet the threshold to require a Grant of Probate. Such assets typically include bank accounts and share parcels.
Every bank will have a different range as to what they will transfer without a Grant of Probate. However, amounts in the $20,000 – $50,000 spectrum will typically not require a Grant of Probate.
However, it should be noted that the Executor of the estate will usually have to indemnify the asset holder against any claim made by another executor, beneficiaries and creditors such as a super fund or bank.
Property Owned As Join Tenants: This is where the deceased owned assets, which were held together with another person as joint tenants. In such a situation, a Grant of probate is not required.
The typical situation where this will arise is in the case of a marriage where one partner passes away. Accordingly, any property held as ‘joint tenants’ and even other assets held jointly, such as bank accounts and vehicles, will not form part of the deceased estate and instead pass to the surviving owner.
It is important to note that this is not the same as a ‘tenants in common’ arrangement. In this situation, a Grant of Probate is required in NSW as this will form part of the deceased estate.
Other Situations Where Probate is Not Required In NSW?
Although less common, Intestacy is another situation where a Grant of Probate is not required in NSW.
Intestacy refers to the following situations:
- The deceased has no Will;
- The Will of the deceased is legally invalid; and
- The Will of the deceased cannot be found.
In these circumstances, you do not need to apply for a Grant of Probate. However, do you need to apply for what is known as Letters of Administration,
Importance of Seeking Legal Advice
When discussing matters such as ‘when is probate required in NSW’, it is essential to note that there are set situations where probate is and is not required.
However, there are also some circumstances where it is uncertain where probate is required, such as in the case of assets held with financial institutions and whether they will need a grant of probate or not. If you have any more questions regarding a Grant of Probate in NSW, please do not hesitate to reach out to one of our friendly and experienced Wills & Estates lawyers.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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