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Probate in NSW

Probate is an order from the Supreme Court which confirms that a deceased’s Will is valid and allows the Executor or Executors to administer the estate in accordance with the terms of the Will. Our team is experienced in making both simple and complex applications on behalf of Executors for a Grant of Probate to the Supreme Court of NSW.

The process to apply for Probate is set out in a number of laws and rules and it is important that the Executors follow these rules to ensure that they obtain the protections that the law can provide them.

Do I need to apply for Probate?

Whether you need to apply for Probate depends on the type, size and value of the assets owned by the deceased. There is no obligation to apply for Probate for every estate. Some banks will release smaller amounts to the Executors without Probate. If there was real estate owned by the deceased solely in their name or as tenants in common, the Executors will have to obtain Probate to deal with the real estate asset.

Our team can provide advice on whether you need to apply for Probate.

Who can apply for Probate?

The Executor or all of the Executors named in the Will generally apply for Probate. In some circumstances, the person or people named as Executors are unable or unwilling to act as Executor. They may have passed away before the deceased or not have the capacity to act in the role. The Will may name a substitute Executor or Executors who can apply for Probate. If none of the named Executors or substitute Executors is able to apply for Probate, a beneficiary or a close relative or friend may be able to apply for Letters of Administration.

The Court has processes which allow one of a number of named Executors to apply for Probate if the other Executors refuse to apply or if the named Executor is not an appropriate person.

If you need advice on who should be applying for Probate of a Will or have other complications with the person or people applying, our experienced team is available to help.

When do I apply for Probate?

The Executors should generally apply as soon as possible after they have acquired all the necessary documents to apply to the Court. The Supreme Court requires an explanation by the Executors if they are applying after 6 months of the death of the deceased. If the Executors fail to apply for the Probate within 3 months of the death of the deceased, another person with an interest in the estate may apply to the Court for Probate to be granted to that person.

What’s involved in the application to the Court?

  1. Obtain all necessary documents & information
    • The Executors will need to ensure that the Will is the last valid will of the deceased and make enquiries to ensure it hasn’t been revoked or replaced by a later will.
    • To file the application for Probate with the Court, the Executors will need to disclose all the assets, liabilities and expenses of the estate. This is usually achieved by writing to the deceased’s banks, other asset holders and potential creditors to ascertain the assets and liabilities of the deceased.
  2. Publish a notice of intended application for Probate through the Court
    • The Court requires that the Executors publish a notice that they intend to apply for Probate at least 14 days prior to filing the application.
    • The notice is published through the Court’s Online Registry.
  3. Prepare all the necessary documentation for filing with Court
  4. File the application for Probate with the Court
    • The Court documents must be filed with the Court in hardcopy.
    • The Court has rules regarding which documents and how many copies of each document must be filed.
  5. Deal with any requisitions from the Court
    • On occasion, the Court will issue a requisition in respect of the application.
    • For more information of requisitions, go to What is a requisition?
  6. Court issues Grant of Probate
    • Once the Court has reviewed the application, the Court will issue a Grant of Probate under the seal of the Court.
    • The Grant of Probate authorises the Executors to deal with the assets of the deceased disclosed to the Court.
  7. Administration of the estate
    • The Executors will need to collect the assets of the estate and administer the estate.
    • For a more detailed outline of the obligations of the Executors in the administration of the estate and how an estate is administered, see our page Administration of an Estate.

What documents need to be provided to the Court?

The Supreme Court requires a number of documents to be filed with the Court which include:

  • the Will
  • any Codicils
  • the Death Certificate
  • a Summons for Probate form
  • an Affidavit of Executor
  • an Inventory of Property form
  • Grant of Probate form

How long will the application take?

A simple application for Probate generally takes about 6 weeks once all the necessary documents are received.

The Executors must publish a notice of intended application for probate 14 days prior to filing the application with the Court. The Court will generally process the application within 4 weeks from when it is filed.

The Court provides an update on the current processing time at Supreme Court Probate time

What is a requisition?

On occasion, the Supreme Court will issue a requisition to the Executors. A requisition usually means there was an error or issue with the original application for Probate, or the Court wants to clarify something relating to the application.

Having a solicitor prepare the documents and filing the application on behalf of the Executors reduces the risk of the Court issuing a requisition and the inevitable delay that a requisition causes. Our team can assist you if the Court has issued a requisition in response to your application for Probate.

Where can I find more information on Probate?

Supreme Court Fact Sheet

Acts and Regulations

DISCLAIMER

No part of these notes can be regarded as legal advice. Although all care has been taken in preparing all notes, readers must not alter their position or refrain from doing so in reliance on any of these notes. Stephen Wawn & Associates do not accept or undertake any duty of care to readers relating to any of these notes. All inquiries should be directed to Stephen Wawn & Associates.

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