Wills and Probate FAQs

What is Probate NSW?

When the deceased has a valid will and estate plan, Probate NSW is used to administer the wishes contained in the will. The Probate NSW Document is a form of court order that the Supreme Court grants to the executor of a will. This recognizes that the will is in valid form and the executor has been approved by the court to carry out the administration of the estate and disburse any money held to the beneficiaries.

What is an executor?

An executor is someone nominated by the deceased to carry out their wishes within the will. Usually, someone may nominate their spouse, their eldest child, or a close family friend. An executor is not legally obligated to act for the estate and may ‘renounce’ their position, in which case, the will becomes invalid.

What is ‘distribution’?

Distribution is the process of disbursing the funds from the estate to the beneficiaries at the end of the matter. By law, this process takes a minimum of 6 months. Prior to distribution, beneficiaries must prove that they are the person named in the will. This can be done through providing a copy of your birth certificate with your parent’s name on the certificate or your driver’s license.

What happens if there is no will or it is invalid?Wills and Probate

This is known as dying intestate. In this instance, your estate will follow the normal rules of succession, being your entire estate to your next of kin/s. This can complicate the process as assets such as Super do not automatically form part of your estate and will need to be applied for and disbursed separately. Further, Letters of Administration will need to be applied for before the Supreme Court, which can be a lengthier process.

I want to make sure someone doesn’t receive any money when I pass. What can I do?

If there is someone you wish to leave out of your estate that would otherwise be entitled, for example, your child or spouse/de-facto, you will need to write a will and include an ‘exclusion clause’. Anyone who has a claim under the Succession legislation will be able to contest your will regardless of how air-tight it may be. To uphold your will and your wishes, and to ensure the claim is unsuccessful, it is best to have a lawyer draft your will and provide personalized advice.

Do I need to apply for probate NSW?

In NSW, not every matter will require a grant of probate NSW. If the estate is small, meaning that the deceased did not own property and had a small amount of money to their name, you will most likely

not need to apply for probate NSW or if the assets held by the deceased are held in joint names. In this instance, you may only need to file a Notice of Death.

In NSW, you will generally need Probate NSW if the deceased:

– Owned land or property in NSW.

– Holds any bank accounts or term deposits exceeding $50,000.

– Has a share portfolio that exceeds $15,000.

– Has a superannuation account.

What is the probate NSW process?

Once you have instructed a solicitor, they will need to see all documentation relating to any financial asset or account the deceased may have owned. This includes cars, property, insurance polices or bank accounts.

A solicitor will also publish Notices to notify anyone that may have a claim over the estate that the executor intends to apply for probate NSW and distribute the estate to any beneficiaries or debtors that require payment.

The court can take anywhere between 20 days and 6-8 weeks before probate NSW will be finalized. This is dependent upon the current court processing times, COVID-19 delays and the clarity of the documents. In technical cases, the court may issue ‘Requisitions’, meaning they need to view more documentation or have questions answered prior to approving the grant of probate. To view the current court processing times, you can visit https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/sco2_probate.aspx

Distribution of the estate, or the time when beneficiaries are paid their entitlements under the will, generally occurs 6 months after the grant of probate NSW. In this time however, debtors or people who believe they otherwise have entitlements that are not outlined in the will, can make a claim upon the estate, meaning the court will hear their submissions and may adjust their entitlement under the will.

Following distribution, all beneficiaries are paid their share, or a trust account can be established to hold funds on behalf of any beneficiary who is not yet of age. Some inheritance payments may incur tax and for this reason, we recommend consulting with your accountant if you are expecting any inheritance payments.

Do I need a lawyer for probate NSW?

A solicitor can ensure an estate is distributed quickly and efficiently, with all legal regulations adhered too. Further, having a neutral third party conduct the distribution of the estate can ensure that the process remains calm and easy for all family members. Instructing a lawyer will free your family of the burden of paperwork, liaising with banks and superannuation companies and allow yourself to grieve properly.

Additionally, claims upon the estate can be made at any time during the Probate NSW process. In this instance, the matter would proceed to court and a lawyer would need to be instructed by the executor. In most instances, a barrister would also need to be instructed, which can increase the cost to the estate. This speaks to the importance of ensuring your will is properly constructed in the first instance.

As with any area of law, there is no strict requirement that you must instruct a lawyer to conduct probate NSW, although the process of Supreme Court applications, property transactions and Will disputes are significantly easier and quicker when a solicitor is involved.

What is a ‘Notice of Death’?

When two parties hold a property as ‘Joint Tenants’ a Notice of Death needs to be lodged with the Land Registry Services NSW. This is an entirely digital process that your solicitor can handle efficiently. The Notice of Death will alert the Land Registry that one tenant on title has passed away, and ownership naturally passes to the remaining tenant.

This only applies to ‘Joint Tenants’ tenancies. If your property is held as ‘Tenants in Common’, a probate NSW application or Letters of Administration will be required and a ‘Transmission Application’ will need to be filed appropriately.

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