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Probate In Sydney

It is necessary to obtain probate to administrate a deceased estate unless a testator leaves a simple, straightforward will that provides adequately for all his or her loved ones and/or has limited assets when they pass away. This article explains probate in Sydney, with particular attention to the types of probate grants that the Supreme Court of NSW issues under different circumstances.

What is a probate grant in Sydney?

The Supreme Court of NSW issues a probate grant to an executor or an administrator to verify the authority of a personal representative to administrate a deceased estate. The court will:

  1. issue an appointed executor a Grant of Probate to validate a valid will, or
  2. give an “interested” person Letters of Administration with the Will Annexed if there is a will but no executor to apply for a grant, or
  3. issue Letters of Administration to an appropriate person if the deceased died intestate.

In Sydney, a probate grant can validate a will and empower the executor or administrator to distribute the estate according to the will, or authorise an administrator to distribute the estate according to intestacy rules.

Strictly speaking, a personal representative is not legally obligated to seek a probate grant to handle a deceased estate. However, it is in the executor or administrator’s best interest to obtain the court’s approval. Without this approval, the personal representative has no indemnity or protection from civil liability if the estate suffers under his or her management. Also, from a practical standpoint, collecting together the assets of the estate may be impossible without legal authority, as financial institutions and statutory authorities usually require a certified copy of a grant before they will transfer large assets to a personal representative.

When is it not necessary to obtain probate in Sydney?

Various companies and organisations will ask for a probate grant before they will converse with or release assets to a personal representative of the estate. Asset holders such as nursing homes, banks, share registries and the Land and Property Information NSW indemnify themselves by asking for a copy of a probate grant. However, some financial institutions have a policy to release assets as long as the amount is under a certain threshold and the personal representative is willing to assume responsibility for any future liability.

Costs of obtaining probate in Sydney

In Sydney, the main costs associated with obtaining probate are filing fees and solicitor fees. As a general rule, the deceased estate pays these costs. The personal representative may advance these funds (if they have them available) to cover the costs as they are incurred. The estate will reimburse the executor or administrator before paying any other liability other than funeral and burial expenses.

Reseal of probate in Sydney

The Supreme Court in Sydney can also “reseal” a probate grant that another court has issued. This is necessary when a deceased was a resident in another state or territory at the time of their death and probate was issued in that state or territory, but he or she also owned real estate in NSW. The reseal grant of probate will allow the executor or administrator to assume responsibility for the NSW property, including arranging for the transfer or sale of the asset.

Probate timelines and deadlines in Sydney

A personal representative needs to wait a statutory period of time after the death of the deceased before they can apply for a probate grant. In Sydney, an applicant must first advertise their intention to apply for a probate grant on the Online Court Registry, and wait at least fourteen days before lodging their application.

An executor is required to apply for a Grant of Probate in the six months following the deceased’s death. Anyone making an application after this time limit will have to justify the delay to the court. The team at Go To Court Lawyers can help you prepare an adequate explanation for a late application.

Once the application is lodged with the Supreme Court, it can take between 2-6 weeks for the court to assess the grant application. This response time will differ depending on how many applications are before the court and whether there are challenges to the will or probate requisitions.

An executor needs to move fairly swiftly to obtain probate, as they are expected to wrap up the administration of the estate within 12 months, a period known as “the executor’s year”. A beneficiary or creditor of the estate can lodge a complaint with the court if a personal representative unnecessarily draws out the process. There are however, circumstances that would preclude an executor or administrator from finalising the estate within that time frame. For instance, delays can occur because the personal representative has difficulty finding a beneficiary or even because of the complexity of ongoing testamentary instructions, such as a testamentary trust.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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