Do you need a grant of probate?

Date: Jul 03, 2014

If you are named as an executor in a deceased's will then you will need to apply for a grant of probate in order  to manage the estate and assets stipulated in the will. 

Probate refers to the process, as well as the court order, recognising the validity of a named executor to administer the estate.

Superannuation funds, banks, insurance companies or other asset holders may ask for probate before they will release or transfer any of the deceased's assets to you. 

A named executor will need to make an application for a grant of probate to the Supreme Court of New South Wales. When the court grants probate, the executor has permission to administer the estate, explains the NSW Trustee and Guardian. If the deceased is the sole deed holder of any real estate then probate will be required to transfer or sell the property. 

You are not eligible to apply for a grant of probate if you have not been named an executor of the estate. However, you could apply for a grant of administration, which entails a different process to obtaining probate.

How do I apply for a grant of probate?

The starting point for being granted probate is issuing a public notice that states your intention to oversee the estate. You must do this 14 days before filing an application for a grant of probate. 

You will need to provide a range of documents, including the original copy of the will, the deceased's death certificate and a statement that itemises the assets and liabilities of the deceased's estate. You also need to provide a stamped self-addressed envelope and two copies of the grant draft, the will and the statement of inventory.

If you are outside of NSW you will need to provide a local address for service of documents.

What happens next?

Once the Supreme Court of New South Wales has granted probate, the will is entered into public record. Anyone who makes the stipulated payment can obtain a copy of the will. Furthermore, the validity of the will may be challenged. If it is not, then you have the authority to deal with the estate per the wishes of the deceased. 

Legal formalities such as payment of liabilities, preparation of tax and account information for beneficiaries, and distribution of the estate can then be attended to. The process of finalising an estate takes a minimum of six months from the date of death under the Succession Act 2006. 

If you wish to learn more about getting a grant of probate or estate planning, engage the help of an experienced lawyer, who can talk you through the process.