What is probate?
A Grant of Probate is a court order that confirms the validity of the Will, the death of the Will-maker, and the authority of the Executor to carry out the terms of the Will.
Probate is issued by Supreme Courts in all Australian States and Territories and these kinds of grants are said to be in “common form”. Sometimes, probate can be granted by a Judge and if this is done then it is said to be probate in “solemn form”.
When is probate required in NSW?
As a general rule, probate will be required when the asset holder requires it. This could be because of a liability risk or because government regulation requires it.
Probate is generally required in NSW if person dies owning:
- land or a house;
- accounts with any particular bank in excess of approximately $50,000 (though this can vary from bank to bank);
- substantial shareholdings exceeding $15,000 of value; or
- a substantial superannuation balance payable to their estate.
When is probate not required in NSW?
Probate is generally not required in NSW where there are insufficient assets to justify a grant or if all assets are owned in joint names.
Do I need to obtain probate?
It depends.
You only need to obtain probate if the deceased person had some of the assets set out above. However, if you are the Executor and you wish to obtain probate for some reason then it is open to you to do that.
If you do not wish to obtain probate yourself but someone else does, then you are entitled to renounce probate. This means you are unable to be the Executor in the future and you hand the role of Executor to another person named in the Will.
Who is entitled to apply for a Grant of Probate in NSW?
The person named in the Will as the Executor, provided there are no conditions in the Will that prevent them from being the Executor, is entitled to take out a Grant of Probate.
If you are a substitute Executor in a Will and the first named Executor wishes to obtain probate, then you are unable to obtain probate unless the first named Executor renounces probate.
If an Executor has failed to apply for probate six-months after the death of the Willmaker, then a beneficiary or some other person who is interested in the administration of the estate may apply for probate.
How long does a probate take in NSW?
This varies from month to month.
The Court has a website that gives you up-to-date information on Court processing times. You can find the page here: http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/sco2_probate.aspx . However, these are estimates only.
Generally, we would estimate at least four-weeks will pass between the date the Court receives the documents until probate gets granted.
What is a reseal?
A court order only has effect in the jurisdiction that it is issued. It follows that if probate is granted in NSW but significant assets are held in Queensland, the Executor would need to have the NSW probate given force in Queensland.
The process to have a NSW Grant of Probate recognised in another state or territory is a known as resealing. This means that the Grant of Probate from NSW would be given force as if it was an original grant made in the jurisdiction that resealed it.
Reseals are common and may be necessary to completely administer an estate.
Reseals are relatively simple compared to the process to obtain a Grant of Probate.
Probate Lawyers
Gillian Hunter
Director – Wills & Probate Lawyer
Gillian brings empathy to her practice and is focused on preserving relations in the resolution of disputes, where possible.
Revered by the legal fraternity, Gillian is a former member of the Elder Law and Succession Committee for the ACT law society, where she contributed to the development of legislation and education to protect elderly and vulnerable members of the community.
Gillian is a self-confessed Wills and Estates tragic who finds satisfaction in harnessing her acute knowledge of the applicable legislation and case law to procure good outcomes for her clients.
Gil’s mantra is “conversations should be bridges, not battlefields” and she applies this in her dealings with other lawyers, to bring about innovative and prompt resolutions.
Jessica Win
Wills & Probate Lawyer
When it comes to estate litigation matters, Jess is capable as both a strategist and a tactician. Having also operated in probate and administration for her whole professional career, Jess manages disputes to both engineer the most commercial and meaningful outcomes for clients and ensure that these ideal outcomes can practically take effect. Jess is passionate about guiding her clients throughout the whole litigation experience, from providing initial advice to carrying out any final work following the finalisation of a dispute.
Jess is also a big proponent of a multidisciplinary approach to problem-solving. Jess has a developed understanding of both property and tax law which assists clients in understanding how certain outcomes may affect their financial positions in both the short- and long-term, both in estate planning and in dispute resolution.
Anastasios Nicolaidis
Wills & Probate Lawyer
Taso has been taking care of the legal needs of individuals for over a decade. His experience includes drafting wills, handling deceased estates, navigating commercial disputes, assisting with property transactions, and civil litigation (estate and general).
When it comes to disputes, he strives to deliver. He delivers advice in a way that ensures clients appreciate the benefits and risks. His calm and thorough approach to litigation makes him a formidable and respected opponent.