What is probate and why do you need it?

The passing of a loved one is a very emotional time. Often when someone passes away, their family are left behind with the stress and burden of trying to finalise their affairs. However, the complexity of the process involved to deal with one’s estate will a lot of the time largely depend on whether the individual had a Will or died intestate.

In the state of New South Wales, if someone dies with a Will, the executor or executors of the estate will be required to bring an application for a grant of probate of the Will with the Supreme Court of NSW.

A grant of probate is a document that is proof that a Will is legally valid and that the executor appointed under the Will has the legal right to administer the estate.

Once a grant of probate is obtained, the executor then has the right to collect the assets of the estate (e.g. proceeds of bank accounts, proceeds of sale of shares, proceeds of investment accounts); arrange for the sale of real property held by the deceased; pay for any debts out of the assets of the estate and arrange for distribution of the assets of the estate in accordance with the terms of the Will.

Depending on the value of the assets and the type of asset involved, most banks, institutions, superannuation funds and life insurance companies will require a grant of probate. If there is real property, then the executor must have a grant of probate.

What is the process of applying for a grant of probate?

Prior to lodging an application for a grant of probate, the executor must publish a notice of intended application for probate on the Supreme Court of NSW online registry. The notice must be published at least 14 days before an application can be made.

The application to the Supreme Court of NSW consists of various documents in relation to the Will and the deceased. These documents also include a list of inventory of all of the assets of the deceased (i.e., you need to disclose all assets and the value of the assets of the deceased) and details of any liabilities of the deceased.

The executor is also required to lodge the original Will and a certified copy of the death certificate of the deceased and to provide details of all of the beneficiaries of the Will.

What happens if the deceased did not have a Will?

If the deceased did not have a Will, then they die intestate and an application for probate cannot be made.

Instead, the estate will be distributed to beneficiaries according to a predetermined formula under the rules of intestacy set out in the Succession Act (NSW) 2006. This may mean that your estate is left to individuals you did not intend to benefit. It will also mean, that in most cases, an application for a grant of letters of administration will need to be made with the Supreme Court of NSW to prove who is entitled to the estate.

This is a much more complex and costly process then applying for a grant of probate and can cause additional stress and delay for those left behind.

Lesson to be learned

It is important to have a Will in place as it will clearly set out who is appointed as executor and who is entitled to the estate. This will make the process of administering the estate a much smoother and shorter process.

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