Probate refers to the authority to administer a deceased estate and the formal legal process of proving and registering the last Will of a deceased person in the Supreme Court.
The person appointed by the Will to administer the estate is referred to as the executor. The authority for the executor to deal with the deceased estate come from the 'Grant of Probate' issued by the Court.
obtaining a Grant of probate
Do I need to obtain probate?
In most cases, yes. Probate will be required for the sale or transfer of real property unless owned as a joint tenant where it will automatically revert to the surviving owner. In some circumstances where the estate is very small and there is no real estate, probate may not be necessary.
Do I need a lawyer?
Probate is complex and as executor you are liable - you should always obtain legal advice from an experienced probate lawyer.
How much will it cost?
The costs of obtaining probate are payable out of the estate so any expenses you reasonably incur while acting in your role as executor will be fully reimbursed to you out of the estate.
In order to obtain probate, you must make every effort to obtain the original Will through a series of legal searches. The Supreme Court will not issue the grant of probate unless satisfied that all legal search options have been exhausted. Our probate lawyers will conduct all of these searches for the estate where necessary.
Should I seek financial advice?
Yes. There can be a number of unforeseen issues that can arise during the probate process such as the completion of tax returns for the estate and payment of capital gains tax where applicable. It is always advisable to seek advice regarding the possible tax implications of administering the estate.
Obtaining probate is complicated and stressful - let us take that weight off your shoulders.
Overview of probate process
Our probate lawyers will help you with the following
Probate advertisementertisement is published online and puts creditors on notice that a person has passed away and that any claims should be forwarded to the executor. In New South Wales, the probate notice must be published on the Supreme Court online registry. In other states the ad must be published in a newspaper.
Probate documents prepared
Our probate solicitors will prepare all the necessary documents required to obtain the grant of probate, such as the executor's affidavit, inventory of the estate's assets and liabilities and the draft grant of probate itself.
File in the Supreme Court
Our probate lawyers file all the probate documents in the Supreme Court probate registry, and pay the probate filing fee on your behalf (there is no filing fee for obtaining probate in small estates).
Sometimes the Probate Registry of the Supreme Court will make requisitions on the probate application. In layman's terms, requisitions are "please explain" questions by the Court. Common requisitions relate to matters such as visible damage to the original will, questions on execution and identification of witnesses, alterations to the Will and changes of names (the deceased's name varies between the Will and the death certificate for example).
Obtain grant of probate
The grant of probate, once any requisitions have been satisfied, is approved by the Supreme Court and received by our probate team.
Call in assets
Once probate is granted, the executor is then empowered to "call in" and liquidate all estate assets prior to distribution.
Publish notice of intended distribution
Prior to distributing the assets of the estate, an advertisement must be published which notifies potential creditors that any outstanding claims on the estate must be made without delay.
Distribution of the estate
Once the estate assets have been called in and all of the liabilities satisfied, the executor distributes the estate in accordance with the requirements under the Will.read more