In this information sheet we cover everything you need to know regarding making an application for Probate, what it is, when you need to make one and what information and documents you need to prepare.
Probate is the official proof of the last Will of the deceased person and the formal legal appointment of the deceased’s executor as personal legal representative of the estate.
In NSW only the Supreme Court in its Equity Division has the power to ‘grant’ Probate.
The executor named under the Will is the only person who can obtain a grant of Probate. Often more than one person is named under the Will as executor. In such cases (unless one or more of the executors renounces or gives up the right) all executors apply jointly for the grant of Probate.
If an executor has passed away, the executor under their Will may apply for Probate of the deceased person’s will provided Probate is first granted in respect of the executor’s Will.
If there is no executor who wishes to apply for Probate, a different type of application is made to ‘prove the Will’. This is known as Letters of Administration with the Will Annexed.
An executor requires Probate in order to have the legal authority to administer the estate, that is to carry out the deceased’s wishes under his/her last Will including the calling in of assets and converting to money if necessary, payment of estate debts and the distribution of the estate to the beneficiaries named in the Will.
Some assets can be transferred and sold without Probate but usually only where small bank accounts and some refunds from Aged Care facilities are concerned. In this case, institutions often require the executor to give them special protection, called an indemnity.
There are Court filing fees associated with the mandatory advertisement of the intention to apply for Probate and filing the application for a grant of Probate. The fees depend on the total value of the estate.
Solicitors also charge professional fees for the work necessary to make an application. Those fees are regulated under the Legal Profession Uniform Law Application Regulation 2015 and are calculated on the gross value of the estate.
Probate is required where the estate assets include real estate, company shares, insurance and superannuation interests where the estate is the beneficiary and larger bank accounts. Without it, the transfer or sale of assets will not be permitted.
Yes. The Supreme Court Rules require that an application is filed within six months of the death of the deceased person. If the application is made later than six months after the deceased’s death, the Supreme Court requires the executor to explain the delay.
The appointment of an executor is an important responsibility. If prior to the grant of Probate an executor decides not to take up their appointment, they can renounce, but only if they have not intermeddled in the assets of the estate or where the actions taken were merely protective of the assets of the estate.
An executor cannot renounce after a grant has been made. The only way an executor can be removed after a grant is by Court order revoking the grant. This would occur only in exceptional circumstances.
The executor will need to obtain the following documents to submit with the application for Probate:
· The deceased’s death certificate (this will be available from the funeral director who will receive it from the Registry of Births Deaths and Marriages); and
· The original Will.
As executor you should immediately:
· Carry out a thorough search of the deceased’s personal papers for their Will and other documents which might assist in determining what the deceased’s assets and liabilities are;
· Advise the deceased’s bank, building society or credit union that the deceased has passed away so that no-one can access the accounts; and
· Contact the home and contents insurer for the deceased’s home to advise of the death.