You've probably heard the word "probate" used when somebody dies and leaves a will. But what does it mean, and what is the process involved in having probate granted?
What is a grant of probate?
Under NSW law when a person dies leaving significant assets, the executor of the will needs to apply to the Supreme Court of NSW for what is called a grant of probate. This is usually done by the court registrar.
So, why is probate needed?
Imagine a bank holds $100,000 for a person who has died. The bank doesn't know whether a particular will is the last will of the deceased person. This means that unless the Supreme Court confirms the last correct will as valid (following an application by the proposed executor), the bank could potentially be sued in future by the beneficiaries of a more recent will.
So while in a legal sense probate confirms a will as legally binding, in a practical sense probate is what is necessary to redeem assets from an asset holder like a bank, or to transfer real estate, or to sell shares.
Is probate always needed?
Probate is always needed when a person dies owning property in NSW, and is almost certainly required when bank accounts hold more than $30,000, or shareholdings are worth more than $15,000, or if any superannuation balance is payable to the estate, or if there is a bond with a nursing home.
Generally it is not needed in NSW if the assets are low in value, or if assets such as land or houses are held in joint names. If property is owned as joint tenants, as where a couple both have their names on the certificate of title, the property automatically passes to the surviving joint tenant.
But if real estate is held as tenants in common, where there is just one name on the deed, or the deceased owned part of the property with someone else, a grant of probate is needed.
How do you apply for probate?
Probate needs to be filed within six months of the death.
It requires a lot of Supreme Court documentation. Generally, a grant takes over three months to receive following the death, depending on how large the estate is.
If any aspect of the application is not correct, such as the wording being even slightly wrong, the court will issue a requisition for the application to be amended. This can cause significant delays.
The NSW Supreme Court provides information on its website on the process for applying for probate, as well as the court processing times for applications. (Please see Probate.)
It is always prudent to engage a lawyer to prepare the application for probate and to liaise with the court, as this normally saves many months of difficulty and any costs for such work are payable by the estate.
Further information
Please see the articles below for more information about wills and the probate process.
Can an unsigned will still be valid?
What exactly do executors of wills do?
Your baby, your de facto, your ex - why dying without a will is a very bad idea
Paying debts from a deceased estate
How do you choose an executor for your will? - the horror story edition
"I'm the dead man's next of kin and I'm contesting a forged will." Which case won?
When co-executors go to war, will there be anything left of the estate? Which case won?
Joshua Crowther
Estate planning, wills and probate
Stacks Law Firm
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
