PROBATE LAWYER NSW

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.