When a deceased person’s will is challenged, the Supreme Court of New South Wales (NSW) may appoint an executor to distribute the decedent’s inheritance. It is through the probate process that a disputed will or the wishes of a person who dies intestate (without a Will) is considered by the Court.
The Probate Process by the Court
When a Supreme Court Justice directs the distribution of a decedent’s assets to their appropriate recipients, probate is officially underway. In other words, a ‘grant of probate’ is required when a person dies leaving a will and when there is no will or a will is being disputed, the Supreme Court of New South Wales may intervene.
When submitting an application for probate, you must meet additional criteria in addition to obtaining a death certificate. For a will to be considered invalid, the executor (or family member) must file an application with the Supreme Court to be appointed administrator. A “Grant of Letters of Administration” will be issued by the Court when this happens.
Where and How to File for Probate
The New South Wales Online Probate Registry requires an online notification or affidavit of intent to apply for a grant before one may seek to administer an estate in New South Wales. In line with the terms of the decedent’s will, the Grant of Probate empowers an executor (or administrator) to oversee the estate.
Probate is also required in the following cases:
- Assets like property, life insurance, and other assets are not included or addressed in the terms of the will.
- Invalid or unenforceable: The Will is invalid.
- The deceased was not of sound mind.
- When drafting the will, the applicable legal construction rules are not complied with.
How long will it take to complete Probate?
Probate might take anything from six months to two years, depending on the complexity of the case. It is not uncommon for the probate process to go on for years. However, it is important to keep in mind that determining a precise date for probate might be difficult at best. As a result, the time it takes to complete the probate procedure varies on a wide range of variables, including:
- Inheritance of the deceased
- The estate’s relative complexity
- Whether or not the deceased left his or her financial affairs in order
What Happens Next After I File for Probate?
The process of administering a will is governed by a court order that:
- finds and values the deceased’s assets, pays the estate taxes and last debts, and distributes the remaining estate to the decedent’s heirs and beneficiaries.
- Verifying the validity of a Last Will and Testament
- The court verifies the validity of a will when the decedent dies with one.
Making a Person of Interest
An executor or administrator is appointed by the Court to handle the probate procedure. The personal representative is responsible for completing the estate of the deceased. If there is no Will, the court will consider who among the deceased’s closest family members, etc is best equipped to take on the role.
A Personal Representative is tasked with the following:
- Locating and protecting the assets of the deceased.
- Accounting records and appraisals, as required by law, are used to calculate a person’s “Date Of Death.”
- It may also be necessary for the personal representative to post a death notice in the local newspaper to notify unnamed creditors of the individual’s death, as well.
- Final bills are paid by the personal representative of the estate. As long as a personal representative has a good reasonable grounds for rejecting an estate claim, they can do so.
- Inheritance taxes and other outstanding taxes that the estate is responsible for paying are determined by the personal representative, who also prepares and files an income tax return.
- Capital Gains Tax – The date of acquisition is used to determine the value of an asset for capital gains purposes.
- For assets purchased prior to September 20, 1985, use the market value.
- For assets bought after September 20, 1985, use the asset’s cost basis.
If the following occurs:
- A personal representative makes a profit by promoting a client’s property.
- A non-exempt entity is a beneficiary of the probate estate.
- Outside of Australia, the recipient is a beneficiary who sells an asset after probate has been finalized
Ultimately, the personal representative must ask the court for authorization to transfer the remaining assets to the heirs and other intended recipients. Without a will, the assets of the deceased must be passed to the lawful successor. A person’s assets are passed on to the individuals named in their will if they die with a valid testament. Probate laws govern the distribution of an estate’s assets in the event of a decedent’s death without a will or if the probate court rules a will void.
Proper estate planning can help avoid many of the complications that arise throughout the probate process. If you’re interested in learning more about estate planning and probate, contact Harry Quinn for assistance.
Are Probate proceedings time-consuming?
The Grant of Probate can be obtained in NSW by going here for further information.
What are the charges and fees for probate in New South Wales?
The costs and fees associated with obtaining Probate vary according to the kind of estate. More information may be found by clicking here.
Do I have to reveal assets held in shared tenancy?
The deceased’s joint tenancy assets are not included in the estate, as these assets pass to the remaining joint tenancy holder by law. The executor must, however, provide the court with information about the joint tenancy, including the asset’s type and value, as part of the application for probate in order to verify that the executor has provided the court with all relevant information.
The valuation of the estate, which is used to compute the Probate filing fee, does not include assets held as joint tenants. Here, you may learn more about fees and expenses.
What if the deceased’s lawyer has the Will?
Many times, the deceased’s lawyer keeps a copy of the original Will for safekeeping. In order to get a Grant of Probate, an executor does not need to retain the services of the lawyer or solicitor who prepared the will. Instead, Probate Sydney will arrange for the original will to be retrieved and safely stored until it can be submitted in court.
Can I utilize a copy of the Will that I found for Probate purposes?
Assuming a copy of the Will is all that is available, the Court will assume that the original Will was revoked by the testator (the deceased). A Grant of Letters of Administration must be obtained before the estate may be administered because the deceased did not leave a Will when he or she died (click here to find out about Letters of Administration).
As long as the Will has not been revoked and the copy of the Will is in reality a true copy of the deceased’s final Will and Testament, the executor is allowed to revert the starting position of the Court.
Is there anything more you can do for me except Probate?
It is possible for executors to seek Probate swiftly and easily with Probate Sydney, a specialist Probate service. Execution services, including collecting and paying beneficiaries and transferring assets, can be provided by Probate Sydney even after a Grant of Probate has been received (such as real estate and shares).
What do the requisitions from the Supreme Court of New South Wales indicate when I try to get Probate?
Notice that the Probate and Administration Act and/or Supreme Court Act (NSW) criteria have not been met is given by a request from New South Wales Supreme Court.
The executor must address the concerns presented by requisitions by filing additional and/or updated papers in order to correct the situation.
As soon as you advise us, Probate Sydney will be able to meet the Court’s requirements even if Probate Sydney did not submit the Probate application.
Is it necessary to notify the media in NSW of my application for Probate?
Now it’s not. The Supreme Court of New South Wales requires that notice of an application for a Grant of Probate be given in the right manner. Notifications can no longer be published in the newspaper, but must now be posted online. This change took effect January 21, 2013.
The Court will raise a requisition if an application is lodged prior to 14 days after the publication of this notice.
Do I have to foot the bill for the Probate fees and expenses?
Our Probate Lawyers Sydney do not require payment of any costs until after the Grant of Probate is received, except for the Supreme Court of NSW filing fee.
As part of our service, our Probate Lawyers Sydney contacts the deceased’s bank to seek monies to cover the filing cost, which is often possible in most cases.
You will be required to pay the Court filing fee if the deceased did not leave sufficient funds in a bank account, but all costs and expenses incurred in administering the estate (including the filing fee and our costs) are paid by the estate and you will be reimbursed immediately from the estate assets once the Grant of Probate has been obtained and assets sold.
For how long may I file for Probate in New South Wales (NSW), and what is the deadline?
Within six months of the date of death, applications must be submitted to the Court. Any application filed outside of this time frame must include an affidavit explaining the reason for the delay. Our Probate Lawyers Sydney will make certain that your explanation for the delay is included in the application in order to avoid delays in the probate process.
If the estate administration is not completed within a year after the decedent’s death (“the executor’s year”), beneficiaries may be entitled to interest.
How can I get Probate if the dead left money in another state?
The Supreme Court of New South Wales (NSW) has authority to grant a Grant of Probate if the deceased left assets in NSW. Probate granted in New South Wales (NSW) must be re-sealed in the state where the assets are kept in order to release those assets, unless the assets holder waives this step (for example in most instances the Share Registries do not require Probate to be Re-Sealed in another State provided that certain declarations are made).
No assets in New South Wales (NSW) means that Probate cannot be acquired in NSW and an application should be made in the state where the asset is located.
Probate has been granted, but what do I do next?
The executor must guarantee that they carry out their obligations after receiving the Grant of Probate.
Notice of Intended Distribution should be published in the newspaper following the Grant of Probate so that you are protected against claims by creditors and beneficiaries. This announcement is coordinated by our lawyers as part of our Probate service.
What is a Will?
a will is a written instrument, completed in accordance with the formalities set down in the Succession Act (NSW), which reflects the testamentary wishes of a deceased person. in New South Wales
According to the Succession Act, the legal criteria for a Will are that it must be written, signed, and attested in a specific manner.
The Court may nonetheless accept the paper as an informal will if the formal conditions are not completed.
Is it possible to go through with Probate even if the Will isn’t signed?
Yes, if the Court is convinced that the document purporting to be the decedent’s last will and testament was meant to represent the decedent’s last will. The formalities of probating an unsigned will can be waived if there is sufficient proof that the deceased intended the document to be their last Will.
It will be necessary to apply for Letters of Administration instead if the Court isn’t convinced that a deceased person intended the document to be his or her final Will and Testament.
There is no Probate, yet I’m still a beneficiary of the Will.
Law holds that executors have a year from the date of death to complete the estate’s administration. While the Court is unwilling to intervene with the administration during this time period, a beneficiary may petition to the Court for Letters of Administration with a copy of the Will appended if the executor has failed to fulfill their obligations during this time period. the executor.
Probate versus Letters of Administration: What’s the difference?
The executor named in the decedent’s final Will and Testament files for probate on behalf of the estate. To govern an estate in the absence of a will, a person (known as an administrator) must apply for Letters of Administration, which is similar to an executor’s role.
How can I reseal my Will?
In New South Wales, probate granted in another state or country has no legal impact (NSW). NSW’s Supreme Court may reopen the Probate granted elsewhere, if it was granted in one of Her Majesty’s Dominions, in order to prevent the need for a new application for Probate (including another State of Australia).
In New South Wales, the original grant of Probate is handled as if it had been issued in New South Wales. Re-sealing of interstate and international probates in New South Wales is nothing new for Probate Sydney (NSW).
Power of Attorney vs Will: Which document takes precedence in the case of a deceased person?
A Power of Attorney designates a third party to act on behalf of the principal in specific situations (such as illness, loss of capacity or unavailability of the Principal). Upon the demise of the principal, a Power of Attorney expires, and the executor of a Probated Will takes over all decision-making, rights, and liabilities.
After the death of an individual, a Power of Attorney should not be utilized to carry out any transactions.
In the event that someone requests for a copy of my Will, do I have to do so?
A copy of the Will is frequently requested of an executor by a deceased person’s family, friends, or partners.
When a person dies leaving behind a will, everyone who has access to the document must enable selected parties access to the document or supply them with a copy at their own expense.
The following persons have the right to see and/or receive a copy of the Will:
- anyone mentioned in the will, whether or not they are beneficiaries,
- anyone mentioned in an earlier will as a beneficiary of the deceased person,
- the deceased person’s surviving spouse, de facto partner (whether of the same or opposite sex), or children,
- anyone who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate
Once a Grant of Probate is issued, the Will of the deceased becomes a public record, and an executor should be aware of this fact (and as such is not limited to the above class of people). Once the will has been granted, it is included in the Grant of Probate and can be obtained for a charge from the Supreme Court of New South Wales. To the general public, the inventory attached to the Grant of Probate is only accessible to those listed as beneficiaries in the Will.
It’s possible that someone may try to challenge the Will.
Executors, beneficiaries, and family members of the dead turn to Probate Sydney year after year for guidance and representation in Probate Disputes. If you are an executor, we provide free, no-obligation consultations in person or over the phone, or via email. We also have extensive expertise in resolving complicated will disputes in the New South Wales Supreme Court.