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
Grant Of Probate
What is a 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.
When a person dies, their affairs must be finalised. This includes managing the assets and liabilities of the deceased person.
A Grant of Probate is a legal document obtained from the Supreme Court of NSW that authorises the executor named in the deceased’s will to manage and deal with the deceased’s estate in accordance with their testamentary wishes.
How Do I Apply For a 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, the Executor is given a Grant of Probate to confirm the author of the Will has died, the Will is authentic and the executor is who they say they are.
Only those named as an executor in the deceased’s will can apply for a Grant of Probate. The executor can be an individual or more than one person acting jointly, and must be over 18 years of age.
Applications for a Grant of Probate should be made within 6 months from the date of death of the deceased, otherwise the Court requires an explanation for the delay.
Usually the Court will require the deceased’s original will to be filed with the Probate application. However, where the original will has been lost, probate can be granted on a true copy of the last will, and an informal will may be accepted by the Court if it is satisfied that the informal will constituted the last will of the deceased.
Once Probate has been granted by the Court, the executor has legal authority to deal with the estate’s assets and liabilities within NSW and can proceed to the administration and distribution of the estate in accordance with the deceased’s will.
It is important to remember that Probate granted in NSW only authorises the Executor to deal with the estate’s assets held in NSW. If the deceased has assets in another Australian state or territory, or overseas, a Reseal of Probate or new Grant may be required.
Identifying Beneficiaries to a Will
In the process of administering an estate, executors may experience problems in finding and identifying beneficiaries to a Will. When you make your Will, you appoint one or more people to act as your Executor when you die. The job of your Executor is to follow the wishes you set out in your Will and distribute the assets of your Estate, to the beneficiaries you have named in your Will.
The Executor you name in your Will is under a legal obligation to ensure that your wishes in relation to your Estate are carried out in accordance with your Will. If your Executor does not fulfil this legal obligation, they may be liable to any beneficiaries of your Estate that have suffered as a result of this failure.
In the event that you die without a Will, then your assets will be distributed in accordance with a set formula called the “Intestacy Laws” where your parents, uncles, aunts, partners, children, grandchildren, nieces and nephews may all be entitled to receive a part of your Estate. Generally, the New South Wales Trustee and Guardian will be appointed to act as your Executor and they have the same legal obligation to distribute your Estate, to the correct beneficiaries identified under the Intestacy Laws.
Read the case study Identifying Beneficiaries to a Will - "The Benjamin Order" to understand how this legal principle originated and how it might be applied.
Grant of Probate in Common Form - Uncontested Application
When a person dies there is a legal process that needs to be followed to allow their assets and liabilities to be administered. This process is referred to as a Grant of Probate and it requires the making of a Probate Application to the Supreme Court of New South Wales.
The person who makes the Probate application is the Executor named in the Will of the deceased and the application must include the Will of the deceased, a list of the assets and liabilities of the deceased. Other documentation such as the death certificate and an Affidavit sworn by the Executor must also be included.
In addition, the Executor must publish a notice 14 days before filing the Probate Application of their intention to apply for a Grant of Probate. The purpose of this notice is to make sure any creditors and people who may wish to challenge the Will have an opportunity to act.
A Probate Application that is not opposed is referred to as an “Uncontested Application” or a Grant in Common Form. If a Probate application endures a challenge, once the challenge is resolved, the Grant of Probate will be referred to as a Grant in Solemn Form.
The issue that can arise with “Uncontested Applications” is that, they are open to be challenged on certain grounds after the Grant in Common Form has been made by the Court. If an “Uncontested Application” is challenged, then the Court has the ability, to revoke the Grant in Common Form.
Read the case study Revoking a Grant of Probate - Testamentary Capacity to understand how this legal principle might be applied.
In New South Wales there are actions you can take if you believe that a Will is suffering one of the following issues:
- The Will is not valid as it was not signed by the deceased in accordance with the requirements set out in the legislation.
- The deceased lacked testamentary capacity at the time they made the Will. This often occurs where the deceased was suffering from dementia at the time they made the Will.
- The deceased was under duress from an intended beneficiary when they made and signed the Will.
- The Will is not the last Will of the deceased as a later Will has been discovered.
- You believe that the Will is a forgery.
Under the legislation if you believe one of the above issues has occurred then you have the ability to lodge a caveat with the Supreme Court against a Grant of Probate issuing. This will effectively stop the Estate being administered and the assets distributed to the beneficiaries until any issues surrounding the Will have been resolved by the Court.
These types of proceedings are often referred to as ‘Contentious Probate’. There are certain things you need to be aware of if you intend to lodge a caveat against a Grant of Probate and it is an extremely good idea to obtain expert legal advice from a Probate specialist before you commence any action in the Court.
One of the main problems that can arise in lodging a Caveat is the potential that a costs order may be made against you if the proceedings are improperly commenced or without merit. Our expert Probate specialists have assisted numerous people in contentious probate proceedings and we understand the strict legal processes involved as well as the evidence you will require to put before the Court in order to be successful.
Do not despair if a Grant of Probate has already issued as you may still be able to make an application for the Grant of Probate to be revoked by the Court.
Contentious Probate and Trust Disputes are extremely technical, legal areas which is why you will need the assistance of expert Probate lawyers. At Heckenberg Lawyers we will explain to you the process involved in contentious probate proceedings or trust disputes. We will also be able to offer you our legal opinion on your prospects of success prior to commencing proceedings.
Renunciation of Probate - Refusing to be an Executor
My Uncle has just passed and I have found out that I am the Executor of the Estate. I really don’t want to do this! Can I refuse to be the Executor of his Estate or am I legally bound? I haven’t signed any papers agreeing to this.
Finding out you are the Executor of a deceased Estate often comes as a shock. This is one good reason to ensure that any Executor named in your Will has consented to being an Executor. Being an Executor of someone’s Estate is a big responsibility as Executors are responsible for bringing in the assets of the Estate, paying any liabilities and then distributing the assets to beneficiaries as set out in the Will.
The good news is that you can refuse the appointment of Executor of your Uncle’s Estate. Under the legislation, a refusal to act as an Executor is called “renouncing”. To renounce your appointment as Executor the solicitor acting for the Estate will file a Renunciation of Probate signed by you in the Supreme Court of New South Wales. In signing this document, you represent to the Court that you have not meddled in the deceased’s Estate and that you renounce all rights, powers and authorities that were given to you under your Uncle’s Will.
Once the Renunciation of Probate has been filed with the Court, you will be removed as Executor of the Estate. If your Uncle appointed more than one Executor then the other Executors will be responsible for the administration of the Estate. If you were the only Executor appointed as Executor of your Uncle’s Estate, then the Court will usually grant administration of the Estate to the main beneficiary under your Uncle’s Will.
If you decide to renounce your appointment as Executor, you need to act as quickly as possible to file the Renunciation in the Court and ensure that you do not take any steps that could be seen as accepting the appointment of Executor, such as arranging the funeral or making payments to creditors of the Estate.
Revoking a Grant of Probate - Removing an Executor
When a Grant of Probate is obtained the court expects the person appointed as Executor to administer the estate properly. This means that there are certain responsibilities and duties one must fulfil if one is appointed Executor.
These duties include collecting the assets of the deceased, organising funeral arrangements, paying the debts owed by the deceased and distributing the estate in accordance with the will. The Executor is also required to obtain Probate and has a duty of care towards the beneficiaries.
If Executors do not carry out the duties properly, they can be removed by a court order. The court can revoke the Grant of Probate on sufficient grounds being established.
In one case, the Supreme Court of NSW ordered an Executor to be removed due to a conflict of interest. The Executor tried to transfer shares owned by the deceased to himself instead of the named beneficiaries under the will.
The Executor knew that the deceased held the shares and the shares were to be given to the beneficiaries. However, the Executor did not record the shares in the assets and liabilities of the estate.
The beneficiaries brought a court case, seeking to have the Executor removed. At law, the Executor has important duties to fulfil and failure to perform these duties, can lead to the removal of the Executor and revoking the Grant of Probate.
In this case the Executor did not locate and disclose all the assets of the estate in a timely manner. He made unauthorised transactions to pay himself substantial amounts of commission from the estate’s funds. He did not administer the estate in a timely and proper manner.
It is generally accepted that the reasonable time for an Executor to complete their obligations to the estate is, one year from the date the Grant of Probate was obtained. In this case, the Grant of Probate was obtained on the 29 March 2011, and the administration of the estate remained incomplete at the date of the hearing, five years from the date of the Grant of Probate.
The Executor had also failed to keep adequate accounts of the estate and could not give an explanation as to why the accounts had been poorly managed. The Court found he did not recognise the significance of his role as an Executor.
The court was satisfied that these breaches of his duties were serious and justified the Grant of Probate being revoked and removing him the Executor.
It is essential for an Executor to properly carry out their duties entrusted to them by the Probate Court and to act honestly and fairly. The Executor has fiduciary duties and can become personally liable to the beneficiaries and creditors of the estate even if that was the result of his carelessness. Failure to properly administer the estate and placing the interests of the beneficiaries at jeopardy will likely result in the court removing the Executor, revoking the Grant of Probate and issuing a new Grant to another person.