When someone dies with a Will and leaves assets in New South Wales, the executor(s) may have a responsibility to apply to the Supreme Court for Probate. Probate simply means ‘proving the will’.
Why do I need Probate?
Probate is often required by various financial and asset holding institutions prior to allowing the executor(s) to transfer or distribute assets in accordance with the deceased’s Will.
For example, the NSW Land Registry Service will not allow the transfer of a property out of the deceased person’s name without a grant of Probate.
Firstly, the executor(s) must advertise their intention to apply for a grant of Probate with the Supreme Court of NSW Online Registry.
Relevant enquiries are then undertaken to ascertain the nature and value of the deceased’s person’s estate. An ‘estate’ may consist of bank or investment accounts, shares, real property, motor vehicles and even digital assets.
It is important that the Probate application separates those assets which are considered ‘estate’ assets and those assets that are ‘non-estate’ assets. Non-estate assets include property held jointly (including bank accounts or real property), as well as superannuation which, may, or may not, be included as an asset of the estate.
An affidavit is prepared on behalf of the executor(s) which confirms the will as the last will of the deceased, evidences the death of the deceased as well as discloses the assets of the estate. The application, along with the appropriate filing fee, is then sent to the court for assessment.
Once probate of the Will has been granted the executor(s) may deal with the assets of the estate in accordance with the Will. It is important to note that the executor(s) must wait six (6) months from the date of death of the deceased person, as well as advertise their intention to distribute the estate, prior to distributing and finalising an estate.
Whilst each estate will vary in complexity there is a general rule that the executor(s) should finalise estate administration within 12 months from the date of death.
If an application for a grant of Probate is not brought within six months from the date of death the court expects the executor(s) to swear or affirm an affidavit setting out some reasons for the delay.
In certain cases, persons may challenge the validity of a Will on the grounds of testamentary capacity, knowledge and approval, undue influence or fraud.
These types of hearings are often referred to as contested probate applications.
The majority of Probate applications are granted in “common form”. These types of grants are made by a Registrar (a senior court officer) and are dealt with in the absence of the Parties.
A grant of Probate in “solemn form” is made by a Judge in contested Probate proceedings. Parties would attend a formal court hearing contesting why or why not they believe the will to be the last will of the deceased person.
There is a similar application in circumstances where a person dies without a Will known as Letters of Administration.
Generally, the person with the greatest entitlement to the estate will be the appropriate person to apply.
The entitlement to the deceased person’s estate is determined by laws created by state government. These laws are not always aligned with how someone would like their estate to be divided.
Generally speaking, the entitlement of persons to an intestate estate is as follows:
|Spouse and Children of Spouse||Spouse Whole Estate
|Spouse and children of different spouse||Spouse receives a “statutory legacy” plus a one half share of the rest and residue. Children of the former relationship the remaining half share of the rest and residue.|
|Children and no spouse||Children in equal shares|
|No spouse, no children||Parents in equal shares|
|No spouse, no children, no parents||Siblings in equal shares and then the sibling’s children if sibling has predeceased|
|No spouse, no children, no parents, no siblings||Grandparents in equal shares|
|No spouse, no children, no parents, no siblings, no grandparents||Aunts and uncles in equal shares, then to their children|
|No spouse, no children, no parents, no siblings, no grandparents, no aunts or uncles, or cousins||Bona vacantia – the state will be entitled|
An application for Letters of Administration is generally costlier and more time consuming than an application for Probate. This is because the court needs to be satisfied that the correct persons are benefiting from the intestate estate meaning more detailed evidence is required.