What is Probate and why do I need to get it?
When you die and leave a Will, it is important that your Executor (the person you appoint in your Will to carry out your wishes and distribute your Estate) ascertains whether or not your Estate requires Probate.
In New South Wales, an Estate requires a grant of Probate if:
- The value of the Estate is $50,000.00 or more;
- There is real estate and it is not passing between ‘joint tenants’; or
- One of the ‘asset holders’, such as a Bank, requires you to obtain Probate to release that asset for distribution to the beneficiaries.
If a grant of Probate is not required, you can communicate with the asset holders and they will provide you with instructions on how to have the asset released for distribution.
If a grant of Probate is required, a Notice of Intention to Apply for Probate must be filed with the Supreme Court of NSW. This can be done online, using the NSW Courts online portal.
14 days after the Notice of Intention to Apply for Probate has been filed, an application for Probate can be made. An application need to be prepared and filed with the Supreme Court of NSW, along with the filing fee. The application consists of:
- Summons for Probate;
- Draft grant of Probate;
- Affidavit of Executor; and
- Inventory of Property.
The filing fee differs depending on the value of the Estate. You can see the filing fees for the Supreme Court of NSW here http://www.supremecourt.justice.nsw.gov.au/Pages/Current-fees.aspx
Generally, an application for Probate can take up to six weeks to be approved by the Registrar of the Court. If the Registrar has any questions to ask in relation to the application, a Requisition will be sent from the Court seeking further information.
Once Probate has been granted, a sealed copy of the grant will be sent by the Court. A certified copy of Probate should be sent to the asset holders and release of the asset (such as money at the bank) can be sought. Asset holders typically release assets into a bank account in the name of the Estate, or into the Solicitor’s Trust Account. However, every bank has different requirements.
A Notice of Intended Distribution of the Estate needs to be filed at least 30 days prior to distributing the Estate.
Waiting periods to be aware of
If a deceased person owes money to someone, creditors have up to six months, from the date of death, to make a claim against the Estate. If you are the Executor of an Estate and you know or, or are unsure whether there are any, debts owed by the deceased, it is safest not to distribute until after the six month period has expired.
Eligible persons have 12 months from the date of death to make a ‘Family Provision Claim’ against the Estate. Not just anybody can make a Family Provision Claim, they must be an eligible person under the Succession Act 2006 (NSW). Such a person can make a claim that they were not adequately provided for under the Will of the deceased.
If the Estate has already been distributed before these periods expire, and a successful claim is made either by a Creditor or by a Family Provision claimant, the Executor is left personally liable to pay those successful claims. This is why we do not recommend distributing prior to 12 months from the date of death.
By Laura J Burge, Solicitor at Kent Law Group
It is important that anyone dealing with a deceased Estate obtains legal advice. If you need assistance, please give our friendly team at Kent Law Group at call on (02) 4323 1900.