What is probate and estate administration, and do I need a lawyer?

Probate is a Legal document issued by the Supreme Court in NSW authorising the executor to administer the estate in line with the provisions of the Will which forms part of the Probate document. On obtaining Probate the executor can then begin the process of collecting and selling the assets of the deceased person and paying any liabilities and claims made on the estate. If you have been named as an executor in a Will, a probate lawyer can assist and guide you through the legal process of applying for a “Grant of Probate” from the Supreme Court. The starting point will be to enquire with the asset holders to determine the estimated value of the estate and to ascertain the debts and liabilities.

In NSW the first step is to publish a Notice of Intention to apply for Probate on the Supreme Court website. We at Barwick Boitano Lawyers can manage the entire application process from the first step of advertising the intention to apply for Probate to the final step of the distribution to the beneficiaries. Before the final distribution of the estate can take place and more importantly to protect the Executor from personal liability from any potential claims on the estate, a Notice to Creditors is published calling on all creditors on the Estate to notify the executor of any claims they may have on the Estate. Notice periods apply and a minimum of 6 months after the date of death, or 1 month after publication of the Notice to Creditors (whichever is the later) applies. Once the Notice expires the distribution to beneficiaries may proceed. Our legal team can advise you on whether you need probate or not and in relation to any claims made on the estate. We can also assist in the application, and  the distribution of the estate.

Why and when is a Grant of Probate needed?

The Grant of Probate is the first formal step in the estate administration process. Certain professional organisations i.e. banks, insurance companies and superannuation funds often require probate prior to release or transfer of assets for distribution. Probate is also necessary where the assets in the Estate include Real Estate which is to be sold or transferred.

It is understandable for Executors and family to feel overwhelmed when an individual passes away. We will guide and advise you throughout the whole process so you can perform your role as Executor with confidence.

What is the process of applying for a Grant of Probate?

In preparation for the application for a Grant of Probate, the following is a helpful checklist of what is required:

  1. A summary of the deceased assets and liabilities
  2. The Original Death Certificate
  3. The original Will or details of where it is held in safe custody
  4. The contact details of the beneficiaries (persons in the will who receive a benefit).

Applying for Probate

The following are the steps in applying for Probate

  • Publication of a Notice of Intention to Apply for Probate
  • Preparation of the Application which includes an Executor’s Affidavit, Form of Grant and other Original Certificates and Evidence as required by the Court (For example if an executor has predeceased or Original Will is missing).
  • Payment of the Probate Fee (According to the Gross Value of the Estate).
  • Lodgement of the Application in the Supreme Court

When an executor is unwilling or unable to act

In some situations, there may be problems with applying for a grant of probate when an executor is unwilling or unable to act. An application for Probate must be made within 6 months of the date of death otherwise an explanation of delay must be provided with the application.

An executor may be unable to act because they:

  • Refuse to act
  • have died
  • are a minor (under 18 years of age)
  • are mentally or physically incapable of managing his or her affairs
  • live outside NSW.

It is wise to obtain professional advice from someone who has experience in this specialised area of  Estate Administration. Barwick Boitano Lawyers have over 30 years experience in administering estates and can answer any questions or concerns you may have.

Contact Boitano Lawyers today – if you’d like to discuss estate administration and allow us to help you through the process. We offer professional advice, legal solutions and most importantly, peace of mind.