The Executor of an Estate is responsible for identifying the assets and liabilities of the deceased. Once this has taken place, the Executor 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.
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:
- the person named as the deceased must be in fact deceased;
- a Will must be the last valid Will of the deceased;and
- the executor must be authorised to collect assets from persons/body holding them.
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 from a competent probate lawyer 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, or irregularity, the process becomes far more complicated.
To apply for a grant of probate the Executor must first publish a notice of his or her intention to apply for probate and then lodge a number of documents (including the death certificate) with the Supreme Court.
Sometimes in smaller estates it is not necessary to obtain a grant of probate. It depends on the rules of the particular financial institutions, as to whether they will waive the requirement for probate. Where assets are held as joint tenants those assets pass by law to the survivor without the need for Probate.
Our experienced probate lawyers are able to provide assistance to executors who are seeking to submit an application for a grant of probate and to ensure that the executor has fulfilled their obligation pursuant to the Will and avoids personal liability for mismanagement of the estate.