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

Timothy Morton, Director FGD

Timothy Morton

Director – Wills & Probate Lawyer

Tim has acted in a number of complex probate litigation cases where the capacity and knowledge and approval of the willmaker was in doubt or where there have been concerns about whether the willmaker was unduly influenced by another person. Tim also regularly appears in the Guardianship Tribunal of the ACT Civil and Administrative Tribunal.

Tim holds a Master of Laws (Applied Law) majoring in Wills & Estates, he teaches and tutors Wills & Estates at the Australian National University, and he is a member of the ACT Law Society’s Elder Law & Succession Committee.

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