How To Obtain Probate In NSW
When a person dies leaving a valid Will, the estate is distributed according to the terms of the Will.
A probate order states that the Will has been proven to be the last valid Will, of the deceased. It allows the executor to collect and distribute the estate, in accordance with the terms of the Will.
In most cases, the executor of the Will must obtain an order for probate from the Supreme Court. However, probate is not required in every case. The need for a grant of probate depends in part on the form, in which the deceased’s assets are held, as well as the value of the estate. Some asset holders will require the executor to produce a grant of probate before releasing assets above a certain value. This is because the probate order protects these institutions against the possibility of releasing funds to the wrong person. Probate is generally necessary if the estate includes shares, large sums of money, or real estate held solely in the name of the deceased person, or jointly with another person.
If the Will did not appoint someone as executor, or if the named executor dies before the testator, the court will appoint an administrator to carry out the terms of the Will. This task usually falls to the major beneficiary under the Will. If the person appointed under the Will does not want to be the executor, they can give up their right to obtain probate, by filing a renunciation. The executor can appoint the state trustee, or a private trustee company, to act in their place or, alternatively, one of the beneficiaries can apply to the court to become the administrator.
A lawyer can assist with the process of applying for a grant of probate. The first step involves providing notice of an intended application for probate. The purpose of providing notice, is to give anyone with an interest in the deceased’s assets, like creditors, an opportunity to submit their claims.
In New South Wales, an advertisement must be placed in a newspaper, announcing the application for probate at least 14 days in advance of the application. If the deceased lived in another state or country, the advertisement must be placed in a Sydney daily newspaper.
After the notice period has lapsed, the probate application may be filed with the Supreme Court. In general, this application includes a sworn statement by the executor, that he or she will administer the estate according to the law and that they know of no reason why probate should not be granted. Documents must be included with the application including the Will, the death certificate, the advertisement and an inventory of the deceased’s assets and liabilities.
If there is no dispute about the Will, or after any disputes have been resolved, the court will grant a probate order. After a grant is made, the Will becomes a document of public record and any person may obtain a copy.
Graeme Heckenberg is an expert Probate lawyer, with over 25 years experience and is the Principal of Sydney Probate Lawyers. Their offices are based in Macquarie Street, in Sydney’s CBD and conveniently located close to public transport.
If you need expert advice on Probate or Estate Litigation, call the Sydney Probate Lawyers today for an appointment on 9221 2779 or email firstname.lastname@example.org