When a family member passes away, their family may be left with a need to settle unresolved debts as well as distribute estate assets. This can be stressful for the family of the deceased person and legal advice from a probate lawyer may be required.
The probate lawyers at Owen Hodge are highly experienced in the legal processes of estate administration and advising on executor duties. Should you need their assistance, they are here to help your family settle debts and distribute assets according to the Last Will and Testament of your deceased family member.
Your Probate Questions, Answered
What is probate?
Probate is an order issued by the Supreme Court of NSW that:
- Proves that the Will is valid
- Gives authority to the executor to administer the Will
If there is no Will – the person died intestate – or there is no executor, or the executor does not wish to accept the role, then the Court may issue letters of administration upon application by a next of kin, family member, or close relative.
These give similar authority to probate and enable the estate to be rightfully administered by an approved person.
To obtain a Grant of Probate from the Court, the executor should make an application within 6 months of the deceased’s death. If the application is made more than 6 months after the deceased’s death, the executor must give a reason to the Court.
Who applies for probate?
Usually, a deceased person will have left a valid Will that nominates an executor; someone who has accepted the position of administering the estate in conformity with the intentions of the Will.
The executor may be asked to prove that he is authorised to administer the will before the assets can be released and this can be proved with the Grant of Probate. To obtain a Grant of Probate, the executor named in the will must apply to the Probate Office of the Supreme Court. If the application is approved, it will prove the authentication of the will and authorises the executor to administer the deceased’s property.
How long does probate take in NSW?
The process of settling a deceased estate can take anywhere from 6 to 9 months. However, this can sometimes take longer, depending on the complexity of the situation.
What happens if you don’t apply for probate
Unless Probate is obtained, the executor is not legally authorised to deal with those assets. If the executor will not voluntarily renounce probate, a notice can be served on them requiring them to apply for probate.
What role does the executor of the estate play in probate
Executors are usually nominated in the Will of the deceased. Where there is no valid Will or the person nominated to be the executor is unable or unwilling to discharge the duties, the Supreme Court can appoint an administrator to deal with the estate.
An executor of the will is thus a person, who stands in the shoes of the deceased and administers the estate. Executors are required to arrange a funeral, burial, or cremation for the deceased as soon as possible after the death. The funeral arrangements are typically carried out as per any instructions left by the deceased in the Will. Executors also have the authority to deal with assets and liabilities of the estate after the probate has been granted by the Court.
What can a probate lawyer do for you?
Executors have an arduous list of tasks on their plate, often under already stressful circumstances, making proper legal advice from lawyers who handle these matters every day of immeasurable value. Owen Hodge’s probate lawyers have years of experience in managing estates and are available to assist with any questions or queries you may have in the probate process.
Contact our experienced team of lawyers in Sydney for legal advice or assistance with how to contest a Will on 1800 770 780.
Owen Hodge’s probate lawyers are here to help
Managing Wills, estates and probate are difficult matters, particularly when families are still grieving the loss of their loved one. For this reason, seeking the help of probate lawyers is a wise choice to ensure the smooth and proper management of all debts and assets. Contact the Wills and estates lawyers at Owen Hodge today, and let us help you through this complex process.
Frequently Asked Questions
The Supreme Court has a published list of fees, and in the case of probate, a couple of examples from their current schedule are (for gross value of NSW assets):
| $250,000 to $500,000 | $1,088 |
| $500,000 to $1,000,000 | $1,669 |
| $1,000,000 to $2,000,000 | $2,224 |
Law firms also have standard fees for handling probate applications, but it should be noted that those fees do not include any disbursements (such as the above court fees), nor the handling of estate administration.
No, if the deceased estate is small and the deceased did not own property a Grant of Probate may not be needed. If all assets were held in a joint account then assets may be able to be transferred to the surviving account holder with just a death certificate.
Some parts of an estate may be owned jointly – the usual example is a jointly owned property, and another is a bank account in joint names. For these examples, when one of the joint owners dies, the asset automatically passes to the remaining owner under the principle of the right of survivorship. Assets that are jointly held with another party or person do not form part of the estate and cannot be called in as part of the estate. The executor needs to identify these jointly held properties of the deceased and disclose them to the Court during the application for Probate.
The court requires a variety of documents to grant Probate, one of them being a death certificate. This is required for the court to confirm that the owner of the estate has passed prior to granting Probate allowing for the distribution of the estate.
The deceased’s assets are completely frozen until Probate has been granted. However, the executor has access to the deceased’s bank account to cover the funeral costs and expenses, and any Court fees related to acquiring the Grant of Probate.
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.