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A grant of probate refers to the legal document which allows a person to administer the estate of a deceased person. That person is referred to as an executor and is primarily responsible for approaching a Court to obtain probate, taking account of the deceased’s assets (such as real estate, money and any other financial asset and other personal property), paying any debts of the deceased person, and then to distribute the estate in accordance with the deceased person’s will.
What is Probate?
Probate is granted by a Court (in NSW, the Supreme court), upon application by the executor.
Probate provides legal authority for the executor of an estate to obtain assets where those assets are in the possession of a third party (such as a bank or financial institution). In some instances (such as where an estate is small and assets are limited, or where the beneficiary owned real estate as joint tenants alongside the testator), probate will not be required for the holder of the asset to release the asset to the executor.
Grants of probate are generally straightforward but can be made complex depending on the nature of the assets of the deceased person, the size of the estate, whether there are real estate assets held as joint tenants.
In addition, any challenges which might arise as to the validity of the deceased’s wills, if another person wishes to raise a challenge to the validity of the will, or has identified further debts of the deceased, will further complicate the process of efficiently administering the will and making distributions to entitled beneficiaries.
Applying for a Grant of Probate in New South Wales
There is no legal requirement to obtain probate following the death of the deceased, however in many cases the administration of a deceased person’s estate is complicated and obtaining a grant of probate will simplify the process of ensuring that assets are distributed to beneficiaries in a timely, efficient manner and with as least fuss as possible.
In addition, where a deceased person held assets with third parties (whether investment products, bank accounts, etc.), some third parties will not release those assets without the formal authority provided by probate. In these cases, proper administration of an estate is near impossible.
Who can apply for probate?
A testator of a will (i.e. the deceased person) will generally nominate an executor (instituted executor) who will assume responsibility for administering the will and making distributions of assets to beneficiaries, following the death of the deceased. It will usually be the executor who will be the one to apply for probate, with the application made in the Supreme Court of New South Wales.
What if no executor has been nominated?
Where a testator has not nominated an executor, then probate cannot be sought – in such cases beneficiaries will generally make an application for “letters of administration” with the will annexed.
What if the executor named, is unable to act?
In some cases however, a substituted executor may be appointed (such as if the testator has nominated a secondary executor to act in certain circumstances or if particular conditions are met). In these cases, a substituted executor may only make an application for a grant of probate if the relevant circumstances are such that the substituted executor has authority to act.
Most commonly, a substituted executor would step in to obtain probate where the instituted executor died prior to the testator, or if they are unwilling or unable to act, whether by incapacity, illness, absence, or otherwise.
What is the Application for probate process?
There are a number of steps to applying for probate, some of which differ across Australian jurisdictions.
The process below explores the application for probate process specifically applicable in New South Wales, including the publishing of an advertised notice of intended application, the file of documents in the Supreme Court of NSW, and the processing and issuing of probate by the Court.
Before the application process begins, a person must establish their eligibility to apply for probate. Generally, this will be an instituted testator. In situations where a substituted testator is making the application for a grant of probate, that person will need to ensure that the relevant conditions for their appointment as substituted testator, are met.
If those conditions are not met, this increases the risk of either probate being refused, or a grant of probate being found invalid.
Notice of intended application for probate NSW
Before a person is able to apply for a grant of probate, a notice of intended application for a grant of probate must be published online. In New South Wales, this is done so through the New South Wales online registry website. Once published, the notice of intended application (or probate notice) must be advertised for at least 14 days before the filing of a summons for probate. Probate cannot be granted within this 14 day period.
What does the notice of probate do?
The probate notice provides certain details of the probate application and allows any person who may be entitled to make a claim against the estate of the deceased person to make that claim, as well as providing the opportunity for any challenges to the validity of the will to be made by a third party who may be entitled to do so (including where there may be an alternate or later will).
For example, if the deceased had some form of outstanding debt, and the creditor was seeking to recoup the value of that debt, the online notice provides that creditor with sufficient notice that they are able to lodge a claim against the estate. If they fail to make a claim against the estate within the 14 days, this may impede their subsequent ability to successfully claim against the estate before the executor is able to distribute the estate (depending on the circumstances).
Notices are published online on The NSW Online Registry website.
Completing Supreme Court of NSW probate forms
Once an executor has satisfied the notice of intended application period, a number of forms must then be filed in the Supreme Court of NSW to successfully apply for probate. To be granted probate you will need to file the following forms:
- summons for probate, administration or resealing (UCPR Form 111)
- affidavit of executor (UCPR Form 118)
- inventory of property (UCPR Form 117)
- grant of probate document (UCPR Form 112)
Generally, UCPR forms are able to be completed either electronically (by completing the forms on a computer by typing out details in the fields and then printing the completed form), or by writing on a printed version.
More information about what is required for these forms can be found below, and the forms themselves are available online at the Uniform Civil Procedure Rules website at: https://www.ucprforms.nsw.gov.au/.
In addition to the forms themselves, the original wills and death certificate documents will need to be provided. Where a testator passed away overseas, it may also be important to provide accredited translations and identification, where appropriate.
If you have any issues with completing a relevant form, it is important to seek sound legal advice from a qualified legal practitioner with experience with NSW estate law. Our friendly family and succession lawyers at Jameson Law have extensive experience in estate and succession law in NSW, and can provide a free honest consultation to discuss your needs, today.
Summons for probate, administration or resealing (UCPR 111)
A form 111 will set out the important details of the application, including the type of grant being sought (either probate or letters of administration with the wills annexed), date of wills and codicils, as well as the capacity of the applicant (generally an executor named), and any qualifications or limitations on the grant.
Affidavit of executor (UCPR 118)
This affidavit is provided to the Court to support the application, and alongside the annexed documentation, will include most material (such as the means of identifying the will and the deceased) which will allow the Court to determine the application, including:
- attesting witnesses;
- date of death, the age of the deceased, and that the deceased person is that referred to in the relevant death certificate;
- the marriage status of the deceased
- that the deceased’ estate includes asset(s) within NSW
- that the applicant is the executor named in the will (or evidence of the incapacity of the instituted executor, where appropriate)
- confirmation that the notice of intended application had been published by the executor through the online registry (or if the notice was published prior to January 2013, in a Sydney NSW newspaper)
- the names, ages and entitlements of the persons entitled in the distribution of the estate of the deceased
- a statement of assets (to be annexed to the affidavit document) and liabilities of the deceased; and
- the gross value and net value of the estate of the deceased.
Inventory of Property (UCPR 117)
The executor must file the inventory of property form as an annexure to the affidavit of the executors, and two copies provided so that sealed copies of the documents can be provided to the applicant and retained by the Court. The inventory of property is provided to the Court to provide detailed particulars of the assets held by the estate of the deceased.
The form must provide details of:
- any real estate assets in NSW (including the address and title particulars). Where the deceased held real estate with another person as a joint tenancy, this property will generally not need to be included, however it is important to note that where the property was held as tenants in common, the value of the share of the deceased must be accounted for in the gross value of the deceased estate; and
- any other assets located in NSW (including bank account or shareholding details)
Grant of Probate document (UCPR 112)
The grant of probate document is for signing by the Court, and will only need the case number and some basic details relevant to the deceased. Two copies must be produced, with a copy of the deceased’s wills and codicil (if necessary), as well as form 117.
Filing the application for probate in the Supreme Court
Once the application documents have been compiled, the application must then be filed in the Supreme Court of New South Wales, either via post or in person. It is important to ensure the application is complete and correct, as any issues may result in further costs and delays in administering the estate, and possibly a claim against the executor for negligent administration.
The complete application should include all of the above forms and any necessary annexures, i.e. the summons, the original will and any codicil, the affidavit of executor together with the death certificate of the deceased and inventory of property, and 2 stapled sets of the draft grant of probate (including the will, codicils and inventory of property).
Note that in instances where the gross value of the estate exceeds $100,000.00, a probate application will also attract a filing fee in NSW.
The above is general legal information and should not be considered legal advice. You should contact our law firm for legal advice tailored to your specific legal matter. The courts of New South Wales deal with matters on a case-by-case basis. It should also be noted that there may currently be court delays due to COVID-19 and alternative arrangements made for legal process and proceedings.
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Frequently Asked Questions.
Probate is the authority which is granted by a Court to the executor of the estate of a deceased person, for the executor to administer that estate and distribute assets to entitled beneficiaries.
Probate is generally required in the administration of wills in NSW, except in limited circumstances. For a free consultation about whether probate may be required in your case, please reach out to our expert lawyers today.
The cost of probate depends on a few factors, such as the extent of the deceased’s assets, any relevant Court fees, and the cost of the executor.
In NSW, probate is granted by the Supreme Court of NSW. Guidance from an experienced lawyer should be sought, as Court procedures can be complex and length, and mistakes can often be costly.
To obtain probate, a number of Court forms must be compiled (such as the relevant UCPR forms noted above), as well as annexures which provide evidence for the Court to consider (death certificate, wills/codicil, inventory of property etc.). Information such as the date of death, identifying the executor and the deceased person, and particulars of assets are required to obtain probate in NSW.
Probate is generally sought by the instituted executor of an estate. In some circumstances, entitled beneficiaries may apply for letters of administration, or where a testator appointed a substituted executor – that substituted executor may be able to obtain probate in place of the instituted executor.
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