Probate in NSW

Date: Nov 09, 2015

Of the numerous wills and estates processes that apply when someone passes away, probate is one that can often be a significant source of confusion.

It is important to note that not every time someone passes, the probate is required to be obtained. If all of the deceased's assets were held in joint tenancy with another, surviving, person, then no grant of probate is necessary. Property passes by survivorship. Some people get confused and think, well, my friend's wife passed away last year, and he did not need a grant of probate, so why do I need to do anything different?

When a person passes in NSW and leaves assets, both property and real estate are then deemed to be vested in the NSW Trustee. Please note however that the NSW Trustee would not act to initiate any applications with the Court if there is a valid will. If there is a valid will, then the executor named in the will needs to distribute the assets. As soon as probate is granted, the assets are deemed to vest in the executor as at the date of death. The system works that way to ensure that there is no gap in the asset ownership.

This means applying to the Supreme Court of NSW for a Grant of Probate. Do you understand how these processes work?

How a Grant of Probate works

These grants serve as the proof that the person named in the grant is entitled to handle the assets, something that is essential when distributing assets. For example, the executor is able to take this grant to retirement villages and banks to release the deceased's assets. Without such a grant, all assets will remain in the name of the deceased and could not be sold or otherwise distributed.

Note that the Supreme Court of NSW will only have jurisdiction if the deceased has assets in NSW. If they left assets in another state, then you will need to seek a separate grant from the relevant authority.

If the deceased held assets in other countries, then the executor may need to apply for grants in each jurisdiction.

Once probate has been obtained, then executor is able to carry out their set duties.

Application eligibility

The deceased will usually nominate the person they would like to act as the executor of their estate. If they have not named such an individual, or if that person predeceased the testator and no substitute executor was named in the will, then it will not be possible to apply for probate.

This requires the beneficiary named under the will to apply for "letters of administration with the will annexed".

Applications will also have to be filed with the court within six months of the estate holder passing away. Any applications made after this period will require an explanation made to the court. Estate administration should be finalised within 12 months from the date of death, as this is the best way to avoid interest claims by beneficiaries. This 12 month period is often called the 'executor's year'.

Probate can often seem a complex process to understand, but by following the correct processes it's significantly easier to manage. To learn more about how probate works, specifically in NSW, consider reaching out to wills and estates lawyers who can provide this advice.