When a loved one dies and you have been appointed as their executor, the next steps can be quite daunting. How do you go about dealing with their estate? Where do you start? What information do you need to move forward? Is it necessary to apply for probate? This article provides a quick overview on grant of probate, including when a grant of probate is required and the timeframe for applying for one.
What is a grant of probate?
As set out in our December 2021 Newsletter, the executor of an estate is responsible for collecting the deceased person's assets, paying their debts (if any) and then distributing the assets to the named beneficiary/s in the Will.
A grant of probate is a legal document that authorises the executor to collect the deceased person's assets and manage their estate in accordance with the last Will of the deceased person.
There are different types of grants of probate. The most common application for probate is grants in common form. These applications are uncontested and determined by a registrar of the Supreme Court of New South Wales. The other type of application for probate is grants in solemn form and is only made if there is doubt as to the validity of a will. These applications are generally contested and determined by a judge.
When is grant of probate required?
Probate will be necessary depending on the type, size and value of the assets located in NSW.
The Supreme Court of New South Wales can only deal with an application for a grant of probate if a deceased person left assets in NSW.
It is necessary to write to the asset holders for their requirements to release the assets of the deceased person to the executor. If a deceased person held bank accounts with a bank with combined balances exceeding $15,000, the bank will generally require a grant of probate before they can release the assets to the executor. In some cases, the bank may release small funds to the executor without a grant of probate provided they receive an indemnity releasing them from any claims on the deceased's assets or the estate.
There is no need to apply for a grant of probate for property or assets owned as "joint tenants" as these will automatically pass to the surviving "joint tenant". It may be worth checking how the deceased person owned their assets, for example, if they owned real estate, we could obtain a title search to ascertain if the deceased person owned the property as "joint tenants" or "tenants in common". An interest held by the deceased person in the property as tenant in common will form part of the estate.
When it comes to superannuation, if the deceased person has made an effective and valid binding or non-lapsing death benefit nomination in accordance with the terms of the superannuation trust deed, the trustee of the superannuation fund will be required to pay the super death benefits to the legal personal representative (executor) of the estate and generally require a grant of probate before making the payment. In the absence of such nomination, the trustee of the superannuation fund may ask for a grant of probate as part of their decision-making process to determine who is entitled to receive the super death benefits (which may include the proceeds of the life insurance policy) in accordance with the terms of the superannuation trust deed.
What if there are assets outside of NSW?
If a deceased person owned assets outside of NSW, it may be necessary to apply for a grant of probate in that jurisdiction. If you have already obtained a grant of probate in NSW and there are assets in other jurisdiction, you may be able to apply for a reseal of the grant of probate made in NSW in that jurisdiction, if that jurisdiction recognises the probate in NSW. We can apply for a reseal of the grant of probate made in other jurisdiction such as other Australian states or territory or in the United Kingdom in the Supreme Court of NSW.
Timeframe for applying for probate
The executor should apply for probate within 6 months from the date of death, if filed outside 6 months, the Supreme Court of NSW will require an explanation by way of an affidavit of delay. The Court's processing times for uncontested probate application vary depending on the volume of applications received and the availability of Registrars to assess the applications. The usual timeframe for an executor to obtain a grant is within 3 to 6 months from the date of death of the deceased.
Who should apply?
The executor named in the Will, provided they are over the age of 18, must make the application. However, the executor may decide to renounce probate which means they do not want to be involved in managing the estate of the deceased person. This renunciation should be made as soon as practical after the date of death of the deceased person.
Depending on the clause in the Will, in circumstances where the executor cannot act (having predeceased or not having capacity to act or renounced probate), the substitute executor may make the application for probate.
For an uncontested probate of an estate worth $900,000 for example, the Supreme Court of NSW's filing fee would be $1,797.00 (current as at September 2023). The legal costs, for the grant of probate only, would be roughly $5,022.50 plus GST (this fee is based on the prescribed costs set out in s26 of the Legal Profession Uniform Law Application Regulation 2015 (NSW)) plus disbursements including advertising fees.
The contents of this article do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice if you have been appointed as an executor in the will of a deceased person.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.