Good morning Everyone
Probate in New South Wales - What Every Executor and Family Should Know
I have been requested to provide newsletters that set out what happens when a loved one passes away. In this newsletter and the following two I will discuss an application for a Grant of Probate, an application for Grant of Administration and the responsibilities of an Executor.When a loved one passes away, the first thing is to decide whether an Application for Probate or Administration, is required to pass the deceased’s assets to their beneficiaries.
That decision will depend upon the assets of the deceased and whether they left a valid Will as determined by the rules as set out in the Succession Act 2066 Grant of Probate.
If the deceased left a valid will leaving significant assets, then an application for Grant of Probate must be made. Probate is an order of the Supreme Court of New South Wales that is required to allow the executor or executors, to institute the directions as set out in the will. Granting of Probate confirms that:
a. the deceased left a valid Will;
b. the Will is the last valid Will of the deceased; and
c. the executor named in the Will has legal authority to administer the estate.
A Grant of Probate provides banks, government authorities, share registries and the NSW Land Registry Services with confidence that they are dealing with the correct person. Not all estates require a Grant of Probate as some financial institutions will release smaller balances without Probate, while others require a Grant regardless of the amount involved. A Grant Probate is commonly required where the deceased owned:
a. real estate in their sole name;
b. significant bank accounts;
c. listed shares;
d. managed investments;
e. substantial investments; or
f. other valuable assets.
Property held in joint tenancy, passes directly to the survivor. Although not always, it is usually the case regarding the family home. Joint bank accounts are treated as being in joint tenancy unless otherwise specified.
Who can apply
Only the executor or executors appointed under the Will may apply for Probate. If there are several executors appointed, they may apply together, appoint one of them to act on their behalf, or in some circumstances, one may reserve their right to apply later.
An executor/s have a duty to act with absolute honesty, put the interests of the beneficiaries above their own, and manage the estate with reasonable care. They cannot profit from the estate and must treat all beneficiaries fairly and according to law.
An Executor has the following duties which includes:
a. locating the original Will;
b. identifying and protecting estate assets;
c. arranging valuations where necessary;
d. paying funeral expenses;
e. paying debts and taxation liabilities;
f. preparing estate accounts;
g. distributing the estate according to the Will.
Why Professional Advice Matters
I have successfully assisted many clients to be granted a Grant of Probate and assist executors with every stage of the Probate process, from preparing the Court documents; guiding them through a Family Provisions application when an estate is challenged through to transferring property and finalising the administration of the estate. I will discuss in my next newsletter, what happens if someone dies without leaving a valid Will.
Wishing you a wonderful day,
Jeffrey Choy
JCL Legal
0419 233 670
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Liability limited by a scheme approved under Professional Standards Legislation
Legal Disclaimer: This guide is for informational purposes only and does not constitute legal advice.