What Is Probate NSW? + Common Questions and Answers

Probate Lawyer

What is probate and how does the process begin when a family member dies? What are the steps to take, the costs, and who should you contact to start the process?

What is the Probate Process in NSW?

Probate is the process used to ensure that the disposition of the assets of a deceased person follows the legal process and that the wishes of the deceased are respected. Overseeing the process is the executor of the will. Also known as the trustee, the appointed executor is designated via estate planning, the last will or appointed by the court. Often, the role is handled by a surviving spouse. A co-executor is named if the main party cannot fulfill the obligation.

Probate Frequently Asked Questions

Probate is similar everywhere, with minor variations depending on the state or territory.  Below are some of the steps to help you obtain probate with ease.

What is the first step? 

Locate and read the probate will and identify the executor and co-executors. They will take the lead in the process by applying for probate with the court. If you take too long to apply (more than 6 months) the Court will require an explanation for the delay via an affidavit. 

Where do I file to begin the probate process with the courts?

Probate occurs in the state or territory where the individual lived or owned property. If there is personal property in several territories, then a probate proceeding has to be opened in each of those territories. A hearing is then scheduled to validate the will and the executors.

Should I contact a lawyer?

While it is possible to probate a will by yourself, engaging an experienced lawyer can prevent future problems with real estate holdings, inheritance, disputes, and a myriad of other potential issues. If you live in Sydney, please give us a call.

How do I get copies of the Death Certificate?

One of the most important probate requirements is the death certificate. You should obtain several copies of the Death Certificate after death, which is provided by the funeral home, the courts or the hospital where the deceased was pronounced dead. You will need notarised copies.

What is a Letter of Administration? 

A letter of administration (also known as a trust)  is a court issued document naming the manager of the assets and liabilities of the estate. Trusts authorise one to handle the affairs of the person’s estate.

When do you need to file with the courts?  

The filing for a probate hearing is something you or your lawyer can do. File as soon as possible. Within 6 months.

Who should I notify when someone dies?

Contact all those named as beneficiaries in the estate will. Also contact Business associates and creditors, banks and anyone else who had legal or business dealings with the deceased. Take note of any payable debts, if necessary.

Is a public notice necessary? 

Yes. The probate court usually requires public notice through newspaper called notice of intended distribution to allow a creditor to come forward with any claims against the estate.

When are the assets of the deceased distributed? 

You may begin the process of distributing the decedent’s assets once all steps of probate are complete.

Who handles estate administration and what are the fees?

Administration of the estate is best handled by a solicitor. Errors in the handling of an estate could lead to claims by other beneficiaries, creditors or the state itself. Generally, the fees are of two types, hourly or a flat fee.

Hourly fees range from $150 to $200 per hour, and flat fees can start at $1500 and go up depending on the complexity of the estate. In some cases, a percentage of the estate is used as a guideline for fees.

The cost to probate a will depends on the complexity and value of the estate, the number of beneficiaries and whether there are any complications. If anyone contests the will, this will add time and expense to the process.

Errors in the handling of a will by yourself can be costly and time-consuming. Hiring a probate lawyer is the safest form of prevention, especially if it’s a large estate or has many beneficiaries. The basic probate fees include grant of probate. This is the first step and is a declaration made by the court that the person claiming to be the executor of the will is the person named to fulfill that role.

The person seeking this title must file their intended application to the Supreme Court of NSW and once they grant probate, this person has the authority to disburse the estate assets.

What is the supreme court process?

Filing for probate application with the Supreme Court is a relatively simple process. First, the executor schedules a court date and appears before the judge. The will is reviewed by the judge and the executor is validated to be the person named in the will. Then, the executor may order that start of the process for distributing the estate.

What resources are available to assist me?

When a person dies, you have many additional resources at your disposal including solicitors, church members, the funeral home and the court system itself.

What are Supreme Court Letters of Administration?

The letters of administration are legal documents issued by the courts. These letters name the executor and other parties who may have power of attorney for legally acting and administering on behalf of the estate. Letters of administration are needed to close bank accounts, transfer ownership of properties, and dispose of any other assets owned by the estate.

The Role of a Probate Lawyer 

A probate lawyer is a specially trained lawyer who is familiar with probate law and the entire probate process and how to deal with probate and obtaining the Grant of Probate. It is recommended that you engage a lawyer who specialises in these matters because of the complexity of the process and dealing with the deceased’s assets. Property law is another area that requires specialised expertise as these laws vary from territory to territory and it can be difficult to deal with property law.

Probate Administration Act

The probate and Administration Act are bodies of law and provision pertaining to the distribution of the deceased’s assets, rights of asset holders, and the entire process that begins with the date of death when the probate person dies. The example below is specific to NSW, but it is important to know that all territories have similar legislation and that your solicitor and executor need to be familiar will all its provisions.

Identifying Assets and Establishing an Estate Account

Most of the assets will be in the will, but it is important to verify these. There are two categories of assets, tangible and intangible. A plot of land, a home or building are tangible assets. Consider jointly owned properties, particularly if the joint owner is not a family member or beneficiary of the will. Other assets can include bank accounts, stocks, royalties on patents or published books, artwork and collectibles. It is important to identify all assets associated with the estate and be prepared to document these for the courts. This assures that all legal heirs An estate account is an account holding all proceeds. For tax purposes, it is necessary to have a single, traceable account.

Probating A Will: How Long Does it Take?

The time varies and depends on many factors. Until the will is registered and validated by the court, you cannot proceed. Locating and contacting the beneficiaries and other interested parties, creditors, and business partners can also be time-consuming. Conflicts in the will can cause delays, especially if you file a motion to contest it. There is also the possibility of the will being contested. If all parties are in agreement that the Testator’s wishes are to be abided by without contest, then the process goes on. Most probate proceedings take less than a year. If there are conflicts, it is always best for family members to resolve such issues out of court as the time and expense of a court case can be considerable.

What if there is no will?

When a person dies without a will, or “Intestacy”, the courts take over the process of property distribution. In general, the closest living relative, which is the spouse, or domestic partner, will become the personal representative. See below for guidance on intestate matters. Next will be surviving children and relatives. This process takes longer than when there is a will. Also, the ruling of the courts is final, and there is little recourse if any of the parties disagree.

How to Avoid Delays in the Probate Process

The best way to avoid difficulties when probating a will is to ensure that the will complies with the laws of the province where the testator resides. Having a Solicitor create your will is the best way to avoid errors and delays. Make sure that the will is properly signed,  witnessed and notarised. Once done, store the will in a safe deposit box owned by either the testator or the executor. A copy should also be on file with the family lawyer. Make sure all named in the will are aware of the major provisions and are in agreement and do not make any alterations to the will after it is signed and notarised.

Working Through the Probate Process

The loss of a Loved one or Relative is difficult enough. Working through the details of the estate can be overwhelming, but fortunately, there are many resources to assist you. The court system is your first resource, as is an experienced lawyer.

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.