When someone passes away in New South Wales (NSW) with a valid will, the appointed executor(s) often have the responsibility of applying for a grant of Probate from the Supreme Court. This process is essential for “proving the will” and allows the executor(s) to manage the deceased’s estate according to their wishes.
Why Is Probate Necessary?
Probate is typically required by various financial institutions and asset-holding entities before allowing the executor(s) to transfer or distribute assets. For instance, the NSW Land Registry Service requires a grant of Probate before transferring property out of the deceased’s name. Without this legal acknowledgment, the executor(s) may face challenges when attempting to manage the estate.
The Probate Process
The Probate application process begins with the executor(s) advertising their intention to apply for a grant of Probate through the Supreme Court of NSW Online Registry. Following this, several steps are involved:
- Assessment of the Estate: The executor(s) must conduct inquiries to determine the nature and value of the deceased’s estate. This estate may include bank accounts, investment portfolios, shares, real property, vehicles, and even digital assets.
- Separation of Assets: It’s crucial to differentiate between ‘estate’ assets and ‘non-estate’ assets. Non-estate assets can include jointly held properties or superannuation funds, which may not form part of the estate.
- Affidavit Preparation: An affidavit is prepared to confirm the will as the last testament of the deceased, evidence of death, and a detailed disclosure of estate assets. This application, along with the applicable filing fee, is submitted to the court.
- Waiting Period: After receiving the grant of Probate, the executor(s) must wait six months from the date of death before distributing the estate. They are also required to advertise their intention to distribute the estate.
How Long Does Estate Administration Take?
While the time required to administer an estate varies based on its complexity, a general guideline is that executor(s) should aim to finalize estate administration within 12 months of the deceased’s death. If Probate isn’t applied for within six months, the court typically expects the executor(s) to provide a sworn affidavit explaining the delay.
Contested Probate: What Happens If Someone Challenges the Will?
In some cases, individuals may contest the validity of a will based on grounds such as:
- Testamentary capacity
- Knowledge and approval
- Undue influence
- Fraud
These disputes are referred to as contested probate applications and can lead to court hearings where the legitimacy of the will is challenged.
Types of Probate: Common Form vs. Solemn Form
Most Probate applications are granted in “common form,” which involves a Registrar processing the application without the presence of the parties. In contrast, a grant of Probate in “solemn form” requires a formal court hearing, where involved parties can present their arguments regarding the will’s validity.
What If Someone Dies Without a Will?
When a person dies intestate (without a will), an application for Letters of Administration is necessary. Typically, the individual entitled to the estate will be the one who applies for this grant. The distribution of assets in these cases is governed by state laws, which may not align with the deceased’s intended distribution.
Intestacy Entitlements
The entitlement to an intestate estate generally follows this hierarchy:
- Spouse: Receives the whole estate.
- Spouse and children of the spouse: Spouse receives the whole estate.
- Spouse and children from a different relationship: Spouse gets a statutory legacy plus half of the residue; the children receive the other half.
- Children only: Distributed equally among children.
- No spouse or children: Parents inherit equally.
- No spouse, children, or parents: Siblings share equally; their children inherit if a sibling has predeceased.
- Further down the line: Grandparents, aunts, uncles, and ultimately, the state (bona vacantia) if no relatives are found.
Applications for Letters of Administration tend to be more costly and time-consuming than Probate applications, as the court must ensure that the correct beneficiaries are identified and validated.
Contact Us for Assistance
Navigating the complexities of Probate and estate administration can be challenging, but you don’t have to go through it alone. At [Your Law Firm], we’re here to help you understand the process and ensure your loved ones are cared for according to their wishes.
Contact us today to discuss your estate planning needs or if you require assistance with the Probate process.
