Frequently Asked Questions Probate
Information on whether you need to obtain the Grant of Probate can be found by clicking here.
Information on the time it takes to obtain the Grant of Probate in NSW can be found by clicking here.
The fees and costs to obtain Probate depend on the nature of the estate. Click here to find out more.
Assets which are held by the deceased as joint tenants do not form part of the estate as at law these assets pass to the surviving joint tenant. Despite this, the details of the joint tenancy, including the nature of the asset and value should be disclosed to the Court in a separate schedule within the application for Probate to ensure that the executor has made a full disclosure to the Court.
The assets disclosed as being held as joint tenants are not included when determining the value of the estate, which is used to calculate the Probate filing fee. See more about fees and costs here.
In many instances the original Will is retained by the deceased’s solicitor for safe keeping. An executor is not required to engage the services of the lawyer or solicitor holding the Will, and Probate Sydney will organise for the original Will to be collected and held in safe custody until produced to the Court to enable the Grant of Probate.
The starting position for the Court, if only a copy of the Will can be located, is that the original Will must have been revoked by the testator (the deceased). In these circumstances the Court will hold that the deceased did not leave a Will upon his or her death and as such the estate should be administered only after a Grant of Letters of Administration (click here to find out about Letters of Administration).
The executor is able to reverse the starting position of the Court by leading evidence that the Will has not been revoked and that the copy of the Will is in fact a true copy of the deceased’s last Will and Testament.
Provided sufficient evidence is provided to the Supreme Court of NSW, the copy of the Will may be admitted to Probate until the original is located (if ever). Probate Sydney has experience in obtaining Grants of Probate in NSW of a copy of a Will. Please contact us by clicking here or calling 1300 4 PROBATE (1300 477 622).
Probate Sydney is a dedicated Probate service enabling executors to obtain Probate at a fixed fee, quickly and hassle free. Probate Sydney can also assist with the administration of the estate after the Grant of Probate has been obtained, such as collecting all estate bank accounts into our trust account, paying beneficiaries and transferring assets (such as real estate and shares). Further details can be obtained at the time of commencing the Probate application by contacting us here or calling 1300 4 PROBATE (1300 477 622).
A requisition from the Supreme Court of New South Wales is notice that some or all of the requirements under the Probate and Administration Act and/or Supreme Court Act (NSW) have not been complied with.
Requisitions can be issued for a variety of reasons and to rectify such the executor will need to address the issues raised by filing further and/or amended documents.
Even if Probate Sydney did not file the application for Probate we are able satisfy the Court of the requisition once we are instructed by you. Contact Probate Sydney by clicking here or calling 1300 4 PROBATE (1300 477 622).
Not any more. Before a Grant of Probate can be made the Supreme Court of NSW requires that notice of the intended application is made in the proper form. From 21 January 2013 notices can no longer be published in the newspaper and must now be published via the online Court.
Any application filed before 14 days from publication of this notice will be rejected and a requisition raised by the Court.
Probate Sydney do not require payment of any fees until after the Grant of Probate is obtained apart from the Supreme Court of NSW filing fee.
In most instances the filing fee can be obtained from the deceased’s bank and as part of our service Probate Sydney corresponds with the deceased’s bank to request the funds to cover the filing fee.
In the event that the deceased did not leave sufficient funds in a bank account to pay the Court filing fee you will be required to pay this fee from your own money, although all costs and expenses incurred in administration of the estate (including the filing fee and Probate Sydney’s costs) are paid by the estate and you will be reimbursed immediately from the estate assets once the Grant of Probate has been obtained and assets sold.
Applications should be filed with the Court within 6 months from the date of death. If an application is filed out side of this period the Court will require an explanation for the delay to be filed in the form of an affidavit. Probate Sydney will ensure that your explanation for delay is set out within the application so that Probate is not delayed.
The administration of the estate should be finalised within 12 months from the date of death (‘the executor’s year’) to avoid interest being claimed by beneficiaries. Find out more about your duties by clicking here.
The Supreme Court of New South Wales (NSW) require that the deceased left assets in NSW in order for the Court to have the jurisdiction to make a Grant of Probate. If a Grant of Probate has already been obtained in New South Wales (NSW) this document must then be Re-Sealed in the State where the assets are being held in order to release those assets, unless dispensed with by the assets holder (for example in most instances the Share Registries do not require Probate to be Re-Sealed in another State provided that certain declarations are made).
If there are no assets in New South Wales (NSW) then Probate cannot be obtained in NSW and an application should be filed in the State where the asset is held.
Following the Grant of Probate the executor must ensure that they perform their duties. Details of the executor’s duties can be found by clicking here.
Following the Grant of Probate a Notice of Intended Distribution should be published in the newspaper so that you are protected from claims of creditors and beneficiaries. Probate Sydney organises this notice as part of the Probate service.
In New South Wales a Will is a document in writing, executed in accordance with the formalities set out in the Succession Act (NSW), which embodies the testamentary intentions of the deceased.
The formal requirements of a Will are set out in the Succession Act and provides that a Will must be in writing, and signed and witnessed in a certain manner.
If the formal requirements are not met the Court may still admit the document as an informal Will.
Yes, provided that the Court is satisfied that the document purporting to be the deceased’s last Will and Testament was intended to be his or her last Will. If sufficient evidence is adduced that the deceased intended the document to be their last Will, then the formal requirements will be dispensed with and Probate of the unsigned Will granted.
If the Court is not satisfied that the deceased intended the document to be his or her last Will, then the document will not be admitted and an application for Letters of Administration will need to be made instead. Click here to find out more about Letters of Administration.
At law the executor is generally regarded as having the period of 12 months from the date of death to finalise the administration of the estate. While the Court is reluctant to interfere with the administration during this period, if the executor has neglected to carry out their duties within this period a beneficiary may apply to the Court for Letters of Administration with a copy of the Will annexed. Further advice can be obtained by contacting Probate Sydney by clicking here or calling 1300 4 PROBATE (1300 477 622).
Probate is an application made by the executor named in the last Will of the deceased. Letters of Administration is an application made by an interested party where there is no Will in order for that person (called the administrator) to administer the estate in the same way an executor does had there been a valid Will.
Probate obtained in any other State or Country is regarded as having no legal effect in New South Wales (NSW). To avoid a fresh application for Probate being made, the Supreme Court of New South Wales (NSW) may Reseal the Probate obtained elsewhere provided the original Grant of Probate was made in one of Her Majesty’s Dominions (including another State of Australia).
Once Probate has been Resealed in NSW the original Grant is treated as if such was initially granted in New South Wales. Probate Sydney is experienced in obtaining the Reseal of interstate and foreign Probates in New South Wales (NSW). Contact us to get started on the Reseal application by clicking here or calling 1300 4 PROBATE (1300 477 622).
Once the Probate papers have been prepared by Probate Sydney we will require your attendance at one of our 7 Sydney locations to sign the affidavit material in support of the application. Attendance is strictly by appointment only and you can find out your nearest Probate Sydney location by clicking here.
If you are unable to visit us we will post you the documents to be signed (in the presence of a Justice of the Peace) and returned to our office.
A Power of Attorney is a document signed by the Principal appointing another person to act as their Attorney in certain circumstances (such as illness, loss of capacity or unavailability of the Principal). A Power of Attorney ceases upon the death of the Principal and all decision making, rights and obligations vest in the executor of a Probated Will.
For this reason a Power of Attorney should not be used to conduct any transactions following the date of death.
Often an executor will be approached by a family member, friend or partner of the deceased, and asked to provide a copy of the Will.
The Succession Act provides that any person who has possession or control of the Will must allow certain people to inspect the Will, or be given copies of the Will, at the expense of the person so requesting.
The people who are entitled to view and/or a copy of the Will are as follows:
any person named or referred to in the will, whether as a beneficiary or not,
any person named or referred to in an earlier will as a beneficiary of the deceased person,
the surviving spouse, de facto partner (whether of the same or the opposite sex) or issue of the deceased person,
a parent or guardian of the deceased person,
any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate (see who is entitled to the assets of the deceased if there is no Will),
any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
any attorney under an enduring power of attorney made by the deceased person.
An executor should also be aware that the Will of the deceased becomes a publicly available document once a Grant of Probate has been made (and as such is not limited to the above class of people). Upon Grant the Will forms part of the Grant of Probate and can be uplifted and copied from the Supreme Court of New South Wales by any person for a set fee. The public are not able to see the inventory attached to the Grant of Probate as this is reserved for beneficiaries named in the Will.
Each year Probate Sydney is instructed by executors, beneficiaries and relatives of the deceased person to advise on and act in Probate Disputes. We can provide initial no-obligation advice to executors face-to-face, on the telephone or by email and have experience with complex will disputes in the highest courts of New South Wales. Find out more by clicking here.
To find out more or to get started with the application for Probate simply complete your details by clicking here, or contact us on 1300 4 PROBATE (1300 477 622).
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