A probate is essentially the Court’s official recognition that a Will is legally valid. Practically, a probate ensures that the person seeking release of the deceased’s assets has the correct authority to do so. Asset holders, such as banks, superannuation funds, insurance companies and stockbrokers often require a probate in order to protect themselves against the possible liability of transmitting assets to the wrong person.
Generally, a grant of probate is not required in instances where the asset, such as real estate is held in joint names. In such cases, the asset will automatically be transmitted to the surviving joint owner by the production of a death certificate. Other instances where a grant of probate may not be required include the transfer of chattels (goods), small funds in a bank account, and cash in hand.
However, it is necessary to make an application to the Supreme Court for a probate when transmitting assets which are held in the sole name of the deceased. Generally, an application for probate is also needed in cases where an asset is held as a tenant-in-common. A grant of probate will always need to be shown to the NSW Land Registry Services when transmitting real estate held in the deceased’s name as a tenant-in-common.
A “Transmission of Assets Table”, summarising some of the common assets and the documents needed to effect transmission from the deceased to the beneficiary is set in the PDF version of this article.
An application for a probate is to be filed in the Supreme Court nearest to where the deceased lived. Therefore, if the deceased lived in New South Wales, the executor of the Will should apply to the Supreme Court of New South Wales for a grant of probate. An application for a grant of probate can still be made if the executor resides outside of New South Wales, as long as an address for service of documents within New South Wales is provided. It should be noted that where an application is for a grant of letters of administration, the administrator must reside within the state where the deceased lived.
There are a few standard steps that are to be taken in the application for a grant of probate. These include:
a) A Summons for Probate;
b) An affidavit of the Executor; and
c) The original Will of the deceased. A filing fee will also need to be paid to the Supreme Court of NSW.
A grant of probate will generally be issued within a few weeks from the date the application is received by the Court. However, in some cases, additional information may be needed in order for the Court to grant the probate, and in such instances, requisitions (questions) will generally be made by the Court. The processing of the grant will be delayed until a response is made to the requisition.
In instances where the original Will cannot be found, an affidavit will be required, setting out details including where and with whom the Will was held, and searches conducted to find the Will.
Letters of Administration are to be applied for where a person dies without a legal Will (intestate). Letters of Administration authorise a person (administrator) to administer the deceased’s estate and distribute assets. In such circumstances, the Court will decide to whom the deceased’s estate should be transferred to. Generally, since there is no executor, the deceased’s spouse or next of kin will become the administrator of the estate and will be responsible for dealing with the deceased estate. The deceased’s spouse and next of kin can apply to the Court to have the administration of the estate granted to them jointly. The administrator will not have authority to deal with the deceased estate until a grant of letters of administration is made.
The Succession Act provides how the assets are to be distributed. If the deceased passed away with no spouse or relatives who are entitled to the estate, the State will become entitled to the whole estate.
The process for applying for a grant of letters of administration is generally the same as that for a grant of probate.
The Succession Amendment (Intestacy) Act 2009 (NSW), which commenced in March 2010, introduced significant changes, including:
Once a grant of Probate or Letters of Administration has been issued by the Court and any outstanding debts are cleared, the deceased’s estate may be distributed according to the Will or the intestacy rules.
An online notice of intended distribution may be advertised on the New South Wales Online Registry (not mandatory), which protects the executor or administrator from personal liability, if they distribute the estate 30 days after this notice and 6 months after the deceased’s date of death [section 93 of the Succession Act 2006 (NSW)].
When releasing the money owned in a bank account of the deceased, banks will check whether the relevant bank account was listed in the assets and liabilities submitted as part of the Probate application. Banks will require a certified copy of the grant of Probate or Letters of Administration to release the assets.
Property owned by the deceased must also be transmitted by presenting a grant of Probate or Letters of Administration to NSW Land Registry Services (LRS) and lodging documents including the Certificate of Title for the property, a notice of death, a certified copy of the Death Certificate and a notice of sale or Transfer. A lodgment fee also applies. If the deceased owned property as a joint tenant, the whole property will automatically pass to the surviving joint tenant.
Other assets can also generally be released and distributed by showing a copy of the grant of Probate of Letters of Administration to the relevant organisation or authority.
Comasters can help clients to apply for a grant of probate or a grant for letters of administration from the Supreme Court of New South Wales, and assist in distributing the assets to beneficiaries.
© Comasters April 2009. Revised September 2018.
Important: This is not advice. Clients should not act solely on the basis of the material contained in this paper. Our formal advice should be sought before acting on any aspect of the above information.