Steps involved when applying for a Grant of Probate
What is a Grant of Probate?
A Grant of Probate authorises an Executor(s) of a Will to manage the deceased's estate in accordance with their Last Will & Testament. When a person passes away leaving a Last Will & Testament, then a Grant of Probate would often need to be applied for with the Supreme Court of NSW. There is no statutory requirement to apply for a Grant of Probate as each case various depending on the circumstances. Some of the examples can include the size of the Estate, the assets which are involved and the value of the assets. In the event some assets are of a low value, then some institutions will often release the funds to the Executor(s) without having the need to apply for a Grant of Probate.
Who can apply for a Grant of Probate?
The Executor(s) listed in the Last Will and Testament can apply for a Grant of Probate with the Supreme Court of New South Wales.
What happens in the event an Executor does not wish to carry out their duties as Executor?
In the event an Executor is unwilling or unable to act an Executor, then they have the opportunity to renounce probate should they wish. This is a very simple process which occurs at the very start of the matter before the probate application is prepared. If there are several instituted executors listed in a Will, then the remaining instituted executors will be able to carry out their executory duties and apply for a Grant of Probate if required.
If an Executor is the only instituted executor outlined in a Will, then a substituted executor(s) can act if the Last Will and Testament makes that provision. It is strongly recommended when drafting a Will that a substituted executor(s) be appointed, in the event the instituted executor(s) is unwilling or unable to act.
How long does Probate take to be granted in the Supreme Court of NSW?
Provided the Courts do not issue any requisitions and there are no complications, the Supreme Court approximately takes around four-five weeks to Grant Probate. In terms of recovering the assets from an institution once probate is granted will depend on how complex the estate is as it varies on a case-to-case basis.
What is the Process at Maclarens Lawyers when a person needs to apply for a Grant of Probate?
Once an executor(s) receives the Death Certificate from NSW Births, Death & Marriages, an appointment can be made at our office. Important documents are required to be brought along on the first appointment such as the deceased's Death Certificate, Last Will & Testament (if we do not already hold the original), bank statements, dividend statement or any other important documents which indicate what the deceased owned as at the date of death.
During the appointment, we will obtain instructions from the Executor(s) as to what the deceased owned at the date of death and require a rough estimate as to the value of each asset.
In the event Probate needs to be Granted in the estate, we will then publish a Probate Notice on the NSW Online Court Registry. Thereafter, we will commence preparing the relevant documents which need to be filed with the Supreme Court. The Executor(s) would need to swear an Affidavit at our office. Once the application has been executed, the documents will be sent to the Supreme court of NSW.
Once a Grant of Probate has been granted, we will then correspond with third parties to release the funds from various institutions. When our firm is ready to distribute the Estate, a distribution letter is issued to the Executor(s) which outlines how much the beneficiaries are entitled to in accordance with the deceased's last Will and Testament. Prior to distributing the estate, the executors will also need to confirm that the beneficiaries are not bankrupt. Bankruptcy of a beneficiary would require the benefit to be paid to the relevant trustee in bankruptcy.
As you can see, the timeframe of obtaining probate and distributing the assets can vary on a case-to-case basis depending on the complexity of an estate. If you an Executor and need advice about obtaining a Grant of Probate, feel free to call one of our Estate Solicitors at Maclarens Lawyers.