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A Grant of Probate and the Executor of a deceased estate acting in accordance with the will maker's wishes.

Probate

What is probate?

A Grant of Probate is an Order made by the Supreme Court of New South Wales that contains the court’s official seal, confirms the validity of a Will and legally allows the Executor of a deceased estate to act in accordance with the will maker’s wishes to distribute the assets to the named beneficiaries.

A Grant of Probate allows the executor to prove that they are the person who is responsible for the management of the deceased’s estate and is required by most banks, financial institutions, conveyancers and share registries before anything owned by the deceased can be paid out.

 
 
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FAQs

When someone passes away, there is often much to be done for the people who are left behind. Sometimes, applying for probate feels difficult, time-consuming and emotional, and can be very overwhelming for the person or people named as executor. However, with the right support and guidance, the process can feel a lot less painful.

An executor is the person nominated by the deceased to take care of their estate once they have passed away. The duty of the executor is to obtain probate by first collecting the deceased’s assets, paying any outstanding debts and then distributing the assets to the beneficiaries.

 
 

Once probate has been granted, the executor is legally responsible for the estate. They are responsible for:

  • Calling in the assets

  • Paying the liabilities

  • Notify the beneficiaries

  • Publishing a notice of intended distribution, and

  • Finalise the deceased’s tax obligations (for example, lodging a final tax return)

 

The timeframe will depend on the complexity of the will and the size and nature of the estate.

Applications for probate should be made within 6 months from the date of death of the deceased, unless there is a reasonable explanation for the delay.

 

Probate is not always necessary, and whether it is required will depend on the size and kind of assets that the deceased has left behind. Instances where probate will generally not be required include:

  • Where the estate is of low value (such as less than $25,000 in the bank)

  • Where the only assets were jointly held

 

When someone dies without a will, this is known as dying “intestate”.

In these circumstances, the Court will issue “Letters of Administration” instead of Probate. The effect of Letters of Administration is the same as Probate, it is just the process that differs. People who are entitled to assets of the deceased are:

  1. Surviving spouse, or ex-spouse
  2. An adult child
  3. A person who was dependant on the deceased or was a member of their household
 

Do I need a lawyer? What are the next steps?

We can assist executors with applying for the grant, advice in relation to obligations and finalising the deceased’s estate in a timely and cost-effective manner. We can help clarify your legal and financial responsibilities as executor, and ensure you make informed decisions.  

Contact us today to get started. 

Andrew Capelin

Principal Director

Andrew Capelin is the Principal of Capelin Law; he is a lawyer, mediator and collaborative practitioner with over 25 years of experience in legal practice and business. Capelin Law is built on the belief in making every effort to help people resolve their issues without using a court. This approach is faster, cheaper and less stressful. Therefore we believe it is just a better way of doing things.

Andrew practiced as a barrister for about 10 years which makes him very competent and confident in a courtroom! Ironically, Andrew now handles very few litigation matters these days, preferring to focus on helping families resolve their issues collaboratively.   

Consequently, Andrew finds collaborative practice to be a very fulfilling part of the work that he does and is passionate in his belief that it gives better outcomes for families.

Andrew’s other passion is playing golf.