What is probate?
Probate is an order from the Supreme Court stating that a will is valid and the executor/s have the right to collect and administer the estate in accordance with the terms of the will.
When is probate necessary?
Probate will be necessary if the deceased died owning real estate, except if the real estate is owned as joint tenants.
Generally, when the estate is very small (worth less than $15,000) and uncomplicated, or when all assets are held as joint tenancies, there is no need to obtain probate or letters of administration.
What does ‘formal administration of an estate’ mean?
In NSW, if there is a will and an executor, formal administration involves the executor applying for a grant of probate from the Equity Division of the Supreme Court of NSW.
If you have been appointed as an executor, do you need to retain a solicitor to assist with probate?
Technically, you don’t need a solicitor to assist with the application for the grant of probate.
However, the process of applying for a grant of probate is quite complicated, and you may feel more comfortable retaining a solicitor to manage things, depending on:
- how much time you have available
- your level of expertise and confidence in dealing with other people’s money
- your experience with the legal system.
Alternatively, you may wish to seek the assistance of a solicitor for certain aspects of the probate application, such as:
- ensuring that the notice of intended application for probate published in the newspaper is in the correct form
- preparing the affidavit of the executor and other court documents.
Depending on your relationship with the deceased, you may be grieving and feeling overwhelmed by the thought of dealing with such fiddly administrative tasks.
Retaining a solicitor to assist with probate may take a lot of the hassles out of the process.
If you do decide to arrange for a solicitor to administer the estate on your behalf, the costs (provided they are reasonable) will be met from the estate.
How do Monardo Solicitors approach probate?
We at Monardo Solicitors are very experienced in guiding clients through the probate process.
So, we’ve designed a form, which you can fill in quickly and easily.
We then use the information you’ve provided to begin the process of preparing the application for the grant of probate.
How does our probate form work?
Step One: You fill in the probate form
You fill in the probate form online and send it to us via the reply button at the bottom of the page.
Step Two: We get back to you quickly, with a quote for how much it will cost to manage the application for the grant of probate process for you
We will review the information you’ve provided, and give you a quote for managing the application for the grant of probate process.
If we need any additional information, we will get in touch with you.
Step Three: We prepare and lodge the application for the grant of probate
If you are happy with our quote and instruct us to go ahead, we commence the process of preparing and lodging the application for the grant of probate.
Step Four: Once probate has been granted, we can guide you through the next stage in the process of administering the estate
If you wish, we can also guide you through the process of administering the estate after probate has been granted.
- paying the deceased’s debts
- paying income tax, duties and funeral expenses.
- distributing the assets according to the terms of the will.
Can we help you if you don’t like filling in online forms and you’d prefer to discuss the issue of probate in person?
Of course we can assist. If you don’t like filling in online forms or you’d prefer to talk to us in person about how we can help you with probate, just give us a call on 02 8006 5244 to speak to one of our lawyers. Our experienced wills and estate team will be happy to assist you.
What is the probate process?
Step One: Advertising the intention to apply
Fourteen days before applying for a grant of probate, the executor needs to take out a newspaper advertisement indicating the intention to lodge the application.
The main objective here is to find out whether anyone is holding a will made by the deceased that is dated after the date of the will that has been advertised.
Step Two: Making the application for the grant of probate
In order to apply for the grant of probate, the executor (or their lawyer) needs to file certain documents with the court, including:
- a summons (signed by the executor or their lawyer)
- the original will
- an affidavit of the executor, stating that the executor will administer the estate according to the law and there is no reason by law the executor should not be granted probate of the will.
- The affidavit should also attach:
- a statement as to whether the deceased person left any other document attempting to set out their testamentary intentions
- the death certificate (which can be obtained from the Registry of Births, Deaths and Marriages)
- a copy of the newspaper advertisement stating the intention to apply for probate
- a list of the person’s assets and liabilities.
Other documents may be required if it is a complex application.
You will also need to pay the court a filing fee for lodging the application for grant of probate.
Step Three: The court grants probate
Where there is no dispute about the will, the court grants probate in common form.
If there is a dispute as to whether or not the will is the last will of the deceased and a court case ensures, the court makes a grant of probate in solemn form.
What happens with probate if there is a will but no executor?
If the will does not appoint an executor, or the sole executor dies before the deceased or renounces probate of the will, an application must be made to the Equity Division of the Supreme Court for a grant of letters of administration with the will annexed.
What does this mean?
The court appoints an administrator for the estate.
Who makes the application for a grant of letters of administration?
Usually, the application for the grant of letters of administration is made by the beneficiary to the largest share of the estate. That person then becomes the administrator.
What does the administrator do?
The administrator distributes the estate in accordance with the terms of the will.
What happens with probate if there is no will?
In cases where there is no will, the court grants letters of administration and appoints an administrator to deal with the estate.
The will is then distributed in accordance with the rules of intestacy.
What happens after probate has been granted by the court?
After probate has been granted, the next stage of administering the estate can begin. This involves the executor collecting all the assets and paying any outstanding debts.
Before distributing the assets, the executor must make sure all debts have been cleared. This includes:
- funeral expenses
- debts to any lending institutions or private creditors
- any other outstanding administrative or legal expenses.
As mentioned above, the law requires the executor to insert an advertisement before probate can be granted.
Once probate has been granted, a notice of intended distribution may be published online. This isn’t mandatory, but is recommended in most circumstances, unless the executor is the sole beneficiary. The purpose of this advertisement is to allow the executor or administrator to make distributions from the estate without liability.
Once the deceased’s assets have been collected and any outstanding debts cleared, you can begin to distribute the proceeds or transfer specific assets according to the instructions of the will or intestacy rules.
Do you need help with estate planning? Would you like to talk to a lawyer who has extensive experience in estate planning? Call our experienced wills and estates team now on 02 8006 5244.