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