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Probate

If you are an Executor or Executrix we can help you apply for a Grant of Probate.

It is important to obtain our experienced legal advice without delay if you are faced with a dispute between beneficiaries over the terms of the Will or a challenge to the validity of the Will.

Clients generally have a reasonable understanding of what amounts to a Will but many are not aware of what Probate is, or when it is necessary. The following questions are answered to provide you with a general knowledge before consulting us for more detailed advice.

We are able to efficiently assist you with legal advice to complete all legal documents including Affidavits and the Statement of Assets and Liabilities required to apply for Probate or Letters of Administration (if there is no Will).

What is Probate?

Is Probate always necessary?

What happens if there is no Will?
What steps do I take as Executor to apply for Probate?
What can I do if there is a dispute before Probate is even granted?
Is the grant of Probate final or can it be challenged?
How much does it cost to file a Probate application?
What is the difference between Probate in common form and Probate in solemn form?
What if property was owned by the deceased in more than one state?
How long does Probate take?


What is Probate?

A Will can be revoked at any time up until the testator dies. Upon death the Executor takes up a provisional role. Application is made to the Probate Division of the Supreme Court of New South Wales to obtain a grant of official approval of the Will. This formal legal document issued by the Court is known as Probate and confirms:

the Will of the deceased, and also
the Executor’s authority to administer the estate

Even if a subsequent Will is discovered the actions of the Executor cannot be challenged (provided he has acted in good faith at all times).Obtaining a Grant of Probate can be of vital importance in protecting the Executor.
This Grant of Probate is usually a formality where there is no dispute involved.

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Is Probate always necessary?

No, Probate is not required for very small estates or where property is held jointly. Individual banks etc will have a policy for dealing with the transfer of small accounts without the requirement for a Grant of Probate. Joint property will automatically pass by survivorship.

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What happens if there is no Will?

If there is no Will in existence then there will be no Executor. This is called dying intestate. Your role may become that of an Administrator. Application may be made to the Probate Registry of the NSW Supreme Court for a Grant of Letters of Administration.This would authorise you to proceed to administer the deceased's estate in a similar manner to an Executor.

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What steps do I take as Executor to apply for Probate?

At ExecutorsHelp a friendly, experienced lawyer can assist you with every step of the process:

where to start: locate Will
practical issues including securing deceased's property, managing pets, checking support available for immediate family of the deceased, cancelling deliveries etc.
advice on your responsibilities, liabilities and commission as an Executor
compile checklist with you of deceased's assets and debts and lodge requisite notices in newspapers
prepare Application and necessary Affidavits for Probate
apply for grant of Probate
timetable for administration of estate including any testamentary trusts established under the terms of the Will
collect assets
advise you on legal order for payment of debts and distribution of assets/or intestacy formula for distribution
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What can I do if there is a dispute before Probate is even granted?

Action can be taken by way of a Caveat. By lodging a Caveat with the Supreme Court this will halt the Probate process until the Court investigates the issue. This action should be taken immediately if for instance the deceased's Will is thought to be a forgery or the deceased made the Will under duress or undue influence of others.

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Is the Grant of Probate final or can it be challenged?

The Grant can still be challenged after the Court has issued the Grant of Probate in Common Form. A challenge may be made by a person who is 'eligible' under the the Succession Act 2006 NSW. To be successful the applicant must be able to show the deceased did not make adequate provision for them in the Will to ensure their proper maintenance, education or advancement in life. If you believe you may have a claim, contact us as soon as possible as time limits do apply.

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How much does it cost to file a Probate application?

In New South Wales the following court filing fees apply. Fees are an expense paid out of the estate. Fees are calculated on the sworn gross value of the estate:

Probate (less than $100,000) Nil
Probate ($100,000 or more, but less than $250,000) $718
Probate ($250,000 or more, but less than $500,000) $974
Probate ($500,000 or more, but less than $1,000,000) $1,493
Probate ($1,000,000 or more but less than $2,000,000.00) $1,990
Probate ($2,000,000 or more but less than $5,000,000.00) $3,316
Probate ($5,000,000 or more) $5,528
Current as at 10/10/2016
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What is the difference between Probate in common form and Probate in solemn form?

The process of applying for Probate is usually straightforward and documents are lodged at the Probate Registry. In this case the document issued is called a Grant of Probate in Common Form. However if there is a dispute concerning the Will this will involve court proceedings to determine the outcome.The result is then recorded in a Grant of Probate in Solemn Form.

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What if property was owned by the deceased in more than one state?

Once the Grant of Probate is obtained there is provision made under the The Succession Act 2006 NSW to re-seal the Probate in another state to deal with assets located in that state as well.

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How long does Probate take?

The average estate can have a Grant of Probate typically issued within 2-4 months. The more complex the estate the longer it takes to identify all assets and liabilities of the deceased. Time guidelines will be discussed at the outset. The Executor then proceeds with the administration of the estate.

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