Estate Administration - Applying for Probate

Posted by Malcolm Campbell on 15 November 2017
Estate Administration - Applying for Probate

In general terms, an Executor's duty is to take care of the deceased's assets and property, see that debts and taxes are paid and finally, to distribute the assets to the beneficiaries of the Will.

Once the assets and liabilities have been identified the Executor normally applies for a Grant of Probate from the Supreme Court of NSW.  The Grant of Probate confirms that the Will is valid and it authorises the Executor to administer the estate to the beneficiaries named in the Will in accordance with the terms of the Will.

To apply for a Grant of Probate the Executor must first publish a notice of their intention to apply and then lodge a number of documents (including the death certificate) with the Supreme Court of NSW. 

Sometimes in smaller estates it is not necessary to obtain a Grant of Probate.  It depends on the particular asset as to whether the requirement for Probate will be waived or whether there is any real estate involved.  It is important to note that where assets are held as joint tenants, those assets pass by law to the surviving owner without the need for Probate and regardless of the provisions of the Will.

What is Probate?

Probate is the grant of official approval from the Court that certain formal requirements have been met in relation to a Will.  Therefore, while the “Will” is the actual document containing the last wishes of a deceased person, “Probate” is the legal authority granted by a court allowing those wishes to be carried out.

A number of formalities must be satisfied before Probate will be granted:

  • a Will must be the last valid Will of the deceased; and
  • the person named as the deceased must be in fact deceased.

Probate can be revoked if the Will is proven to not be the last valid Will made by the deceased or if any other defects are found.  Even if all seems straightforward, the best course for any Executor is to seek legal advice to ensure that all legal bases are covered before proceeding.

Generally, a Registrar performs the process rather than a Judge and the Executor will not have to go to court unless there is a dispute about, or irregularity with the Will.  If there is a dispute, the process becomes far more complicated.

How will probate be granted if there is a dispute about the Will?

The answer depends upon when the dispute arises.  Basically, a dispute can arise before the granting of Probate or after it has been granted.

What if there is a dispute before probate is granted?

If concerns exist about a Will before the granting of Probate, a Caveat can be lodged with the Supreme Court which prevents Probate being granted until certain conditions are satisfied. There are three types of Caveat:

  1. Caveats seeking proof of the Will in solemn form are used where there are concerns about forgery or doubts about whether the Will was properly signed and executed.
  2. General caveats are used where doubts arise about the Will in relation to:
    • the testator's capacity to make the Will;

    • the identity of the intended beneficiary;

    • the testator's understanding of the content of the Will or its effect;

    • whether the deceased acted under duress or undue influence in making the Will;

    • questions of forgery.

  3. Caveats forbidding grants are used in respect of informal testamentary documents.  The Court has the power to treat informal documents as Wills even if they don't meet all the strict criteria.  This type of caveat prevents a court from making such a grant without first hearing from the caveator regarding whether the informal documents should be granted validity.

If a Caveat is lodged, it is not guaranteed that Probate will not be granted.  It simply means that the court will be required to examine the circumstances surrounding the Will more thoroughly than normal, and if satisfied, will then issue the Grant of Probate.

What if there is a dispute after Probate is granted?

If concerns arise after Probate is granted, the grant can be challenged.  This is what is generally referred to as challenging a Will.  There are two main avenues here:

  1. Family Provision: the Court may order that provision out of the estate be made for a person's maintenance education or advancement in life, but only if it is satisfied that the person making the application is an "eligible person" and that proper provision should be made for that person.
  2. Revocation: an application can be made to the Probate Division of the Supreme Court to revoke the Grant of Probate.  However, this is extremely complicated and rarely granted by the court.

Numerous requirements must be fulfilled in order to successfully challenge a Grant of Probate.  The Property (Relationships) Act 1984 (NSW), the Probate and Administration Act 1898 (NSW), the Succession Act 2006 (NSW) and the Supreme Court Rules 1970 (NSW) all contain different parts of the legal landscape in this jurisdiction.  The Court's discretion to grant an application in these circumstances is not unrestricted.

Although the granting of probate usually involves more of a process than a contest, this process is not something that should be entered into lightly.  A prudent Executor should seek legal advice and assistance with matters of probate.