Probate & Estates
Our Services
- Applying for a Grant of Probate
- Applying for Letters of Administration (where there is no Will)
- Assisting executors to administer an estate
- Advising beneficiaries on their rights
- Family Provision Claims
- Testamentary Capacity claims
- Advice regarding informal Wills or issues with validity of Wills
What is probate and when is it needed?
Probate is a legal process where the Supreme Court of New South Wales confirms that a deceased person’s Will is valid and authorises the executors to administer the estate in accordance with the Will.
Probate is usually required if the deceased held significant assets (e.g. a bank account with more than $50,000, real estate, or shares). This is because those assets cannot be released or transferred unless the executor can demonstrate that they are authorised to deal with the deceased person’s estate.
In most cases, probate is granted by a registrar of the Supreme Court in an administrative process without the need to appear in court. If a person has died without a Will, a similar Court process called 'Letters of Administration' is required.
In contested or complex applications, it may be necessary to apply for a grant of probate ‘in solemn form’ requiring proceedings before a judge who reviews the relevant evidence (e.g. medical evidence). This more complex process also affords interested parties (such as beneficiaries or other potential claimants) to participate in the proceedings.
What duties does an executor have?
An executor is the person in charge of a deceased person's estate. This includes handling the financial and legal matters in accordance with the Will of the deceased person.
Some of the main tasks involved include:
1. Arranging the funeral of the deceased person and disposal of their body.
2. Apply for a Grant of Probate (if required).
3. Protect the assets of the estate including by
securing and insuring any property.
4. Collecting assets and paying the deceased’s debts.
5. Handle Tax Matters for the deceased and the estate.
6. Keep proper accounts for the estate and distribute the Assets in accordance with the Will.
An executor owes fiduciary duties to beneficiaries and must act in the best interests of the estate. An executor may be personally liable for breaching these duties or for failing to properly administer the estate, for example, by distributing assets before all debts are identified and paid.
It is strongly recommended that executors engage a solicitor and, where appropriate, seek accounting and other professional advice to ensure their duties are properly carried out.
How long does it take to administer an estate?
Unless there are legal disputes or complex circumstances, most estates in New South Wales are expected to be administered within 12 months of the date of death. This period is referred to as the "executor’s year".
Executors are generally recommended to wait at least 6 months from the date of death, and after the period specified in a Notice of Intended Distribution has passed, to consider distributing an estate.
However, executors should be aware that the time limit for filing a family provision claim in NSW is 12 months from the date of death (subject to any extension of time granted by the Court for late claims.)
Distributing the estate before the 12 month period expires carries risk. If a family provision claim is made after distribution, the Court may order the return of part or all of a beneficiary’s distribution pending resolution of the claim. Executors should seek legal advice before making any early distributions.