When someone passes away with assets in New South Wales, all of their holdings are immediately frozen until they can be administered under their Will. In many cases, the authority must be granted by the NSW Supreme Court before the assets can be released to a legal representative of the deceased estate. This is called a Grant of Probate.
Meaning Of Grant Of Probate
A Grant of Probate is a legal document stamped by the Supreme Court of NSW confirming the Last Will and Testament of the deceased is valid and legally binding. It also lists all assets and liabilities of the deceased, confirms the identity of executor/s, and grants them authority to administer the estate
Many organisations require a Grant of Probate before they will release assets held on behalf of the deceased. But once it has been granted to the nominated executor, they have the authority to take legal control of all assets of the deceased’s estate before distributing it per their Will.
Who Is Entitled To Apply For A Grant Of Probate
If someone is named executor and they’re over 18 years old, they are eligible to make an application for Grant of Probate. When more than one person has been named as executors, they will all make the application together.
In cases where no executor has been named, a beneficiary can apply for a Grant of Letters of Administration from the Courts with the annexation of the Will.
When someone passes away without leaving a Will, the rules of intestacy will usually apply. In this case, an entitled person will also need Letters of Administration from the Courts for them to be appointed as administrator of the estate.
Grant Of Probate Application Process
Only appointed executors of a Will who are older than 18 years are eligible to make an application for Probate. The only exception is when conditions have been met for someone to be appointed as a substituted executor.
Before an applicant can file their summons for probate with the Courts, a Notice of Intention to Apply for Probate must then be published on the NSW Online Registry for at least 14 days. This provides creditors with enough time to contact the registered person and make a claim on the deceased estate. Someone also has time to produce a more recent alternate version or to hire estate litigation lawyers so they can challenge the Will.
The applicant then needs to complete all relevant documents required by the Court either in person or sent by post. These documents are to be included when applying for a grant of Probate in NSW:
- Probate Summons
- Executor Affidavit
- Original Will
- Original Death Certificate
- Any Codicils
- Asset Inventory
- Grant of Probate (2 copies)
After the application has been submitted, it will then take anywhere from one to eight weeks for the Registrar to process. Ultimately the actual turnaround time will depend on the workload of the NSW Supreme Court at the time of submission.
When Is A Grant Of Probate Needed For A Will
While a grant of Probate is typically needed when someone passes away with assets in New South Wales, it is not always a necessity. So ultimately it will depend on the type, size, nature, and total value of assets and the requirements of each asset holder.
Some smaller organisations with holdings of the deceased may not require probate to release smaller assets with lower values. Most large corporations like banks and insurance firms will require a grant of probate as it will protect them against possible legal challenges.
How Does Grant Of Probate Work When Challenging A Will?
The Supreme Court of NSW only approves a grant of probate when a valid Will is an honest and legal representation of the deceased’s last testamentary intentions. So if someone believes the Will is fraudulent, unfair, or influenced, not valid for any other reason, there are legal options for contesting a Will.
While the validity of a Will can’t be contested in NSW before the person has passed away, the probate can be challenged before or after probate has been granted. But during a Will dispute after probate, the onus will be on them to justify why they didn’t come forward before probate was granted as well as having grounds as to why it should be revoked.
A Will estate dispute can also become a lot more complicated after the executor has started distributing the estate. So if you’re considering contesting a loved one’s Will, there are both practical and financial reasons to start the process before the executor has been granted probate.
How Can AJB Stevens Help?
The loss of a loved one can be a difficult and emotional time. It can be hard enough coming to terms with your loss without having to deal with complicated and complex legal processes as well.
If you need to apply for probate in NSW, it’s important that you have some Will and estate lawyers by your side who understand the legal process and can help guide you through it. So whether you need probate professionals or deceased estate lawyers, get in touch with the team at AJB today for some expert legal advice with understanding support.