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Probate Lawyer NSW

The process of applying for probate, obtaining a grant of probate, executing a will and administering an estate can be very challenging for most executors.

As An executor, you are responsible for the following:

  • finding the will.
  • arranging for disposal of the body.
  • getting the death certificate from the Registry of Births, Deaths and Marriages.
  • ascertaining the deceased's assets and liabilities.
  • assessing the value of the deceased's assets.
  • applying for a grant of probate.
  • paying the deceased's debts, income tax, duties and funeral expenses.
  • distributing the assets according to the terms of the will.

We have discussed on the Grant of Probate and the Reseal of Probate pages some of the possible implications involved in this process.

There are specific legal requirements that need to be followed during the process so it is advisable at the very least to Get In Touch with a probate lawyer and obtain some initial advice about your situation. Your first consultation with one of our senior probate lawyers is free of charge.

Identifying Beneficiaries in a Will - "The Benjamin Order"

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.

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Revoking a Grant of Probate - Testamentary Capacity

In the Supreme Court of New South Wales case concerning In Estate Sue [2016], an application to revoke a Grant in Common Form was submitted. The grounds for the application centred on whether the Will that had been Granted Probate was invalid, because of a lack of testamentary capacity of the deceased at the time they made the Will. Testamentary capacity refers to the person making their Will, understanding the nature and effect of making their Will and that they were of sound mind at the time of making their Will.

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