In 1902 an executor was unable to find or identify a beneficiary of an estate. This case gave rise to the term “Benjamin Order”. In this case, the Court decreed that when an Executor is faced with uncertainty on who should be a beneficiary of an Estate, that Executor has the right to seek a declaration from the Court on who should benefit. Once this declaration is made the Executor is no longer liable if they distribute the Estate to who they believe are the correct beneficiaries, even if more entitled beneficiaries are subsequently discovered.Continue Reading
Probate Law NSW
Probate Law is governed by each State and applies to property and assets in that State.
What is Probate?
Probate is the process of proving and registering in the Supreme Court the last Will of a deceased person. When a person dies, somebody has to deal with their estate.
When someone has passed, it is usually the executor of their Will who administers the estate and handles the disposal of the assets and debts. In order to get authority to do this, the Executor would need to obtain a legal document called a Grant of Probate.
To protect the interests of those who hold the deceased’s assets (for example banks) the Executor may be asked to prove they are authorised to administer the Will, before the assets can be released. The Grant of Probate is the proof required.
An executor can be an individual or a trustee. Once a Grant of Probate has been given, management of the deceased’s assets can legally be transferred to the executor.
All Grants of Probate are stored, along with the corresponding Will, at the Supreme Court. These are public documents. If a deceased person does not have a Will, validation of their estate and benefactors is not done with a Grant of Probate, but with a similar document known as Letters of Administration.
Fees to obtain a Grant of Probate or Letters of Administration are fixed in accordance with Schedule 3 of the “Legal Profession Uniform Law Application Regulation 2015”. These fees are based on the value of the estate's assets and can be viewed on our Probate Costs page.
If you require further information in relation to the administration of an estate, which can include, the “winding-up of bank accounts, selling shares, or superannuation, Get In Touch with one of our lawyers for an initial free consultation.
Is Probate Always Required?
There are some circumstances where a grant of probate is not required. These include:
- Property owned as Joint Tenants (not Tenants in Common)
- Assets of Low Value
Where the deceased owns assets that are held as "joint tenants" with another person, probate is not required. For example, by default, couples who own property together in NSW own that property as "joint tenants". When one partner is deceased, the property ownership will pass to the surviving "joint tenant" and will not form part of the deceased estate. Probate is therefore not required. The same principle applies where bank accounts, motor vehicles and other assets are held in joint names.
Where the deceased owns property that is held as "tenants in common" with another person/s, probate will be required. The property will form part of their estate. The deceased's share of the property will pass to the beneficiaries nominated in their Will.
Where the assets of an estate are low in value such as share parcels or bank accounts, an executor can generally avoid the need to apply for a grant of probate. The executor will most likely be required to indemnify the asset holder (bank, super fund, etc.) against any claim made by creditors, beneficiaries or any other executor.
Every financial institution will have a different threshold as to the amount they will transfer without a Grant of Probate. To provide you some guidance, a balance of somewhere in the vicinity of $20,000.00 – $50,000.00 will not require a Grant of Probate.
Where the deceased has left no Will, or it can't be found, or it's invalid, there is no need to apply for a Grant of Probate. In these circumstances you will need to apply for Letters of Administration. To see what is involved with applying for Letters of Administration visit this page.
How Long Does Probate Take?
The Supreme Court will usually approve an application for Probate within six working days.
However, you need to be aware that a number of steps need to be taken before you will be in a position to make a Probate application to the Court including:
- Locating the original Will of the deceased.
- Obtaining the original Death Certificate of the deceased.
- Publishing the statutory notice that a Probate application will be made.
- Completing the required Court Probate documents including a sworn statement from the Executor of the deceased’s Estate.
- Preparing an inventory of assets of the deceased.
- Preparation and location of the above documents can take some time. You should also be aware that if the documents are not prepared correctly, the Court will not grant Probate until any mistakes are rectified. To avoid a delay in the Grant of Probate, it is best to instruct a specialist lawyer to assist you in the application to obtain Probate.
How Long Does Estate Administration Take?
Once Probate has been obtained, the Executor of the Estate needs to distribute the Estate in accordance with the wishes of the deceased, as set out in deceased’s Will, this period is called “The Administration of the Estate” and the length of time the administration takes, will depend on the complexity of the Will and the size of the Estate.
If the Estate contains real estate that needs to be sold, or gifts a life residence in real estate to a beneficiary, then the administration of the Estate may take longer then usual.
Most Executors engage a Wills and Estate Lawyer, to administer the Estate. This is to ensure that the Executors comply with their legal duties, in distributing the assets of the Estate and that they are not open to any claims by beneficiaries of the Estate if they make a mistake.
To ensure that you administer the Estate correctly and in compliance with the law, you need to speak to a specialist lawyer in this area. Our expert Wills and Estates lawyers, can answer your questions on the processes involved, in obtaining Probate and Administration of the Estate, and because of their extensive practice in this area, they can give you a realistic idea of how long Probate and Administration of the Estate will take.
Process of Probate
Process of Probate includes applying to the Supreme Court of New South Wales for the Will of the deceased to be declared a valid legal document, allowing the assets in the deceased Estate to be gathered in by the Executor, liabilities paid and the deceased Estate distributed to the beneficiaries named in the Will of the deceased.
The Probate process is quite formal, and contains numerous steps required to be made by the Executor named in the Will, in order for the Grant of Probate to be issued from the Court.
The first thing to remember is that the Court expects applications for Probate to be made within 6 months from the date of death of the deceased. A failure to file the Probate application within this time frame will not mean that Probate cannot be granted, but it will require the Executor of the Estate to provide a reason for the delay to the Court.
There are a number, of important documents that need to be prepared for a Probate application, as well as vital steps that need to be taken.
- An online advertisement of the intended application for Probate must be made at least 14 days prior to the application for Probate being filed in the Court.
- The Court Summons is the formal document that is filed in the Court seeking the Grant of Probate.
- The Affidavit of the Executor is a sworn statement made by the Executor of the deceased Estate setting out matters in relation to the deceased including formal recognition of the Will of the deceased and an inventory of the deceased’s Estate setting out all known assets and liabilities of the Estate.
- The original Will and the Death Certificate will also need to be filed with the Court.
A failure to properly complete all the Probate steps, can delay the Grant of Probate issuing from the Court and make acting as the Executor of the deceased Estate a time consuming, confusing and expensive process. That’s why the majority of Executor’s will appoint a lawyer to act for the Estate, to satisfy all the steps in the Probate process and to ensure that all the correct and required documents are filed with the Court.
Before making an application for Probate you should seek expert legal advice from a Probate Lawyer, who is experienced with the legal and procedural matters throughout the Probate process.
Probate Plus Service
When you are appointed the Executor of a deceased Estate you are responsible for obtaining a Grant of Probate and then distributing the Estate in accordance with the Will of the deceased.
In addition, as Executor of the Estate you need to comply with all your legal obligations to ensure that you are not personally liable to the beneficiaries of the Estate.
Our Probate Plus Service helps Executors manage the many responsibilities they may not be used to dealing with.
Collecting the Estate Funds after Probate
Collecting the Estate Funds can be a time consuming process where you are dealing with financial institutions, share portfolios, managed investment funds and superannuation trustees.
Our Probate Law specialists will handle the collection of all the assets of the Estate as well as the payment of any debts of the Estate. This means that you can rest assured that the funds are being collected correctly and that all assets of the deceased will be included.
Distributing Funds to Beneficiaries
Once the Estate Funds have been collected and any liabilities of the Estate paid, then the funds need to be distributed to the beneficiaries in accordance with the Will of the deceased.
The distribution of funds to the beneficiaries is one of the most important jobs of the Executor. A mistake in the distribution of the funds to beneficiaries, can leave an Executor open to a claim for damages from the beneficiaries.
Our expert Probate Lawyer specialists, are experienced in distributing funds to beneficiaries under a Will and ensure that the funds are distributed correctly, thus satisfying your legal obligations as Executor.
Property Conveyancing and Transfer of Property
Often the main asset of the Estate will be real estate owned by the deceased. Depending upon the Will this real estate may need to be sold and the funds distributed to the beneficiaries or it may need to be transferred to a beneficiary.
Our Probate Plus Service will handle any necessary sale or transfer of real estate under the Will, so that the Estate can be finalised as soon as possible.
Establishing a Trust Under the Terms of the Will
Every Will is different. If the Will of which you are the Executor results in a Trust being set up for the beneficiaries, then you should speak to our Probate Law specialists who can advise you on your duties as Trustee and how to fulfil these correctly.
Acting as an Executor has many legal requirements. Our Probate Plus Service ensures that you fulfil this responsibility in accordance with the law.
Grant of Probate
A Grant of Probate is a legal document that authorises an executor to manage the deceased estate in accordance with their wishes as set-out in the Will.
Letters of Administration
Probate and Letters of Administration in NSW – What is The Difference? Probate and Letters of Administration are terminologies used in Wills and Estate Law. There are lots of different legal terms used in Wills and Estates, which can make it confusing. Two of these legal terms are Probate and Letters of Administration and they describe two different situations that can occur with a deceased Estate.
Reseal of Probate
Reseal of Probate is explained in this article and why it is important when applying for Probate when assets are located in a different state!
Property and Conveyancing
Buying and selling property or Conveyancing can be a stressful and complex time for those involved. For those inexperienced in the property market, the process is often daunting and mysterious and mistakes can be very costly.
Heckenberg Lawyers are a firm that specialises in disputed will cases, contested deceased estates and probate law, as well as, property and conveyancing. Personal relationships are highly valued, communication is open and honest. The firm’s location in the centre of Sydney gives it fast access to law courts. Sydney Leading Wills Lawyer!
The application for Probate to the Court includes many things such as an Affidavit of the Executor setting out the assets and liabilities of the deceased as well as other formal documents including the Death Certificate of the deceased and the deceased’s Will.