The Supreme Court of New South Wales (NSW) determines the legal authenticity of a deceased person’s will, or, when necessary, appoints an executor to manage the distribution of a decedent’s estate. Probate determines the authenticity of a contested/problematic will, or, establishes managerial authority for an individual who passes intestate, that is, without a will.
The Probate Process
Probate begins when a Supreme Court Justice orders to distribute a decedent’s assets among its rightful beneficiaries. When someone dies with a will, one must first apply for a ‘grant of probate’.
Aside from securing a death certificate, there are other requirements of when applying for probate. When there is no will, or some part of the will is considered invalid, the executor (or family member) needs to apply to the Supreme Court for authorisation as the administrator of the deceased’s estate. When this occurs, the Court will issue a “Grant of Letters of Administration“.
How to Apply for Probate
Before one can apply for estate administration, they must publish an online notification or affidavit of intent to apply for a grant on the New South Wales Online Probate Registry. The legal document known as the Grant of Probate authorise an executor (or administrator) to manage a decedent’s estate in accordance with the provisions of the deceased’s will.
Additionally, the following circumstances require probate:
- Certain assets (properties, insurance, etc.) are not addressed in the Will
- The Will is invalid or unenforceable
- The decedent was not of sound mind
- The legal rules of construction are ignored when preparing the Will
Interrelated issues often exasperate the intricate nature of probate. What if you learn that your now deceased spouse’s assets are outside of the country? What if the asset’s accounts do NOT have you (the executor or beneficiary) as a signatory?
How Long will Probate Take?
A comprehensive legal procedure, like probate, takes 6 months to 2 years. Occasionally, probate takes decades. But note, the reality is, nailing down an accurate timing of probate is, at best, challenging. This is because the timeline of the probate process depends on a myriad of factors that include, in part:
- The size of the decedent’s estate
- The relative complexity of the estate
- Whether the decedent left his affairs in order
- The number of proposed heirs
- If the will is being contested
Other variables impacting the length of probate include:
- the filing of related non-probate lawsuits
- tax implications
- legal procedural requirements
Be forewarned, though: Probate requirements differ by each state’s (or each country’s) legislation. It is, therefore, wise to research the legal procedures of probate to build an understanding of probate requirements and terminology. It is also prudent to contact a probate lawyer so that you can begin to form an estimated timeline specifically tailored to your probate matter. A probate lawyer clarifies issues like probate fees and answers frequently asked questions. They can also provide a probate application or probate kit, and then assist in the probate process step-by-step.
What are the Steps When Filing for Probate?
Probate follows a court-supervised procedure that:
- locates and determines the value of the decedent’s assets,
- pays the estate taxes and final bills,
- distributes the remainder of the estate to its rightful beneficiaries.
Authenticating the Last Will
When a decedent dies with a will, a judge establishes the veracity of the will.
Appointing a Personal Representative
A judge appoints an executor or an administrator who oversees the probate process. Ultimately, the personal representative finalizes the decedent’s estate. It is important to note that if the decedent chose an executor, it usually appears in the will’s narrative. In the absence of a will, the court appoints a close family member, if one is available.
Once appointed, a personal representative is responsible for:
- Locating and protecting the decedent’s assets.
- Determining the ‘Date Of Death’ values – Using account statements and appraisals as set forth by relevant legislation.
- Identifying known creditors – The personal representative may also need to publish a death notice in a local newspaper alerting unidentified creditors of the individual’s death.
- Paying bills – The estate’s personal representative pays the decedent’s final bills. A personal representative maintains the authority to reject claims against the estate, though the refusal must have a valid legitimate basis.
- Preparing and filing income tax return – The personal representative determines if the estate is liable for inheritance taxes or, other unpaid taxes for which the estate must pay.
- Capital Gains Tax – Establishing the value of an asset with regards to capital gains purposes, is based upon the asset’s date of acquisition.
- Use the Market Value – for assets acquired before September 20, 1985
- Use The Asset’s Cost Basis – for assets acquired after September 20, 1985
Capital gains tax might exist if:
- A personal representative sells an asset
- A beneficiary of the probate estate is a not tax-exempt entity
- The beneficiary resides outside Australia
- The beneficiary sells an asset after the conclusion of probate
The personal representative’s final responsibility is to petition the court for permission to distribute the remaining assets to the beneficiaries. Independent of whether there is a will or not, the decedent’s assets must be transferred the rightful heir. So, if a person dies with a valid will, the assets referenced in the will are transferred to the people designated by the will’s narrative. If the person dies without a will or the probate court determines a will invalid, the transference of the estate’s assets is done in accordance with the provision of probate laws.
Many of the dispute or issues associated with probate can be avoided by proper estate planning. Learn more about estate plan and probate by speaking to a probate lawyer near you.
DISCLAIMER: The content of this publication does not constitute legal advice and is intended only to provide a summary and general overview. We do not guarantee that it is current. You should seek specialist legal advice or other professional advice about your specific circumstances. Your access to this publication is not intended to create nor does it create a solicitor-client relationship between you and Unified Lawyers.