Probate
Guiding You Through the Process of Will Validation
Falzon Legal — Your Probate Solicitor
When someone passes on, their Last Will and Testament may require validation before administration — a procedure known as Probate.
If you’re named as the Executor, it’s your responsibility to obtain this approval in a timely manner. This is often at a time of high emotion and sadness, especially if the deceased was your close relative or friend. Statutory legal processes are usually the last thing on your mind.
At Falzon Legal, we will compassionately and considerately guide you through the whole Probate process — advising and acting with exemplary professionalism, while giving you the space, comfort, and support you require.
What Is Probate in NSW Australia?
After a person dies — the Executor named in the deceased’s Will must gather together their left-behind assets, satisfy existing debts, and allocate the remaining estate to the beneficiaries. All in accordance with the Testator’s (the Will-maker’s) wishes.
In order to do this, the Executor needs to be assured that the Last Will and Testament is legal and valid — and that they have the authority to then proceed to address the estate. This is known as obtaining the Grant of Probate.
Once acquired, the Executor can then present this legal document to organisations and persons who hold the deceased’s assets — such as banking institutions — and request that property, investments, and cash are transferred to the Executor for distribution.
Is Applying for Probate Always Necessary?
We understand that dealing with legal matters so close to a friend or loved one’s passing can be challenging and upsetting. Thankfully, Probate isn’t required in all circumstances.
Generally speaking, there are three situations where Probate can be avoided:
1. Real Estate That Is Owned Under a Joint Tenancy Agreement
If the deceased person owned real estate as a Joint Tenant — that is, shared between two people — in most circumstances, the ownership of the building passes automatically to the surviving party.
Usually, this straightforward process also applies to other assets held in joint names — such as motor cars, bank accounts, and investments. As these elements are owned in unison — with no individual owning a particular share — the holding institution will not need to see a Grant of Probate.
However, bear in mind that this procedure doesn’t apply to Tenants in Common. In such an agreement, one individual owns a specified share of the property, which can be transferred to a third party upon their passing. In such cases, Probate will be needed.
2. Low-Value Assets
If the estate includes assets of significantly low value, the custodian — such as a bank — may agree to release them to the Executor without Probate.
That said, it’s often a requirement for the Executor to agree to compensate the institution against any future claims.
Each custodian will have their own rules and thresholds to release assets without Probate — you need to speak to them directly.
3. Dying Without a Will
If the person who has passed did not create a Last Will and Testament — or it cannot be located — you cannot apply for a Grant of Probate.
Known as dying intestate — instead, a responsible person should apply for Letters of Administration. This permits the applicant to act as a Proxy Executor — although it’s only usually granted to a close relative who is entitled to a share of the estate.
You Might Be Able To Avoid Probate — Call Us Today
What Is the Time Limit on Probate?
In NSW, it’s crucial that any application is made within six months from the date of death.
If you make an application after this time frame, it doesn’t automatically mean that a Grant of Probate is refused — but you will be required to provide a satisfactory explanation for the lateness. This is called an Affidavit of Delay.
As none of the estate can be touched or allocated without Probate, it’s important to apply in a timely manner.
It can be heart-wrenching, we know, to consider addressing legal practicalities during the immediate days and weeks after a passing. At Falzon Legal, with our support and reassurance, we will compassionately guide you and take the burden.
What Are the Steps Involved in Obtaining Probate?
Making an application for Probate requires the submission of numerous documents together with fulfilling a multitude of necessary steps. It’s important that this procedure is done accurately and correctly.
Errors, omissions, and oversights can lead to a delay — or indeed a refusal — to the Grant of Probate. Not just elongating the stress and heartache, but also rendering you — as Executor — powerless.
It’s important to speak to an experienced Probate lawyer to guide you carefully and precisely through the process.
While circumstances may slightly vary from individual to individual, usually it involves:
Step 1: Ensuring you’re entitled to make the Probate application. You need to be the Executor — as stated in the deceased’s Will — and be over the age of 18 years.
Step 2: Advertising your notice of intention to apply for Probate NSW online. You must then wait for 14 days before filing a Court Summons for Probate.
Step 3: Providing an Affidavit of Executor. This essential document outlines the information that permits the Court to both consider and approve your application. It needs to be sworn in the presence of a solicitor, Justice of the Peace, or a Notary Public.
Step 4: Proving that you, as Executor, can identify that the Will holds the true and original signature of the deceased.
Step 5: Showing that the Testator is deceased — usually by providing the Court with the Death Certificate.
Step 6: Informing the Court of the known assets and liabilities of the deceased.
Step 7: Supplying the Court with a completed Grant of Probate form, an original copy of the Will, and the filing fee.
Ensure Your Application for Probate Runs Smoothly — Speak to Falzon Legal Now
How Long Does Probate Take in NSW?
Once you have submitted all the necessary documentation and forms to the Court, your application will be investigated by the Registrar.
In usual circumstances, it’s generally around five-to-six working days before your application is approved and entered into the Probate Registry. This is assuming that you — as Executor — submitted all the required documents and completed the necessary forms.
In addition to errors and/or omissions creating a delay, the process may also take slightly longer if there is significant complexity. While there are many reasons why an application is considered to require more attention — it’s often due to:
- Informal Wills
- Copies, not original, Wills
- Limited purpose grants
- Presumption of, not explicitly established, death
It’s important to note that your Probate application isn’t examined or checked by the Court for accuracy before being placed in front of the Registrar. So, if they have questions, issues, misunderstandings, or concerns — they will need to get in touch with you.
Any questions or demands for further information — known as requisitions — must be addressed. If you don’t, Probate will not be granted.
To deal with the requisitions, you need to supply another affidavit and/or file more documentation. All of which delay the process — and your worry and stress.
Falzon Legal, as experienced Probate solicitors, will ensure the most timely progress of your application. Working diligently yet patiently and considerately with you, we will furnish the Registrar with accurate, and complete, documentation.
What Happens After Probate Is Granted in NSW?
Once the Registrar approves your application — they will return your authorised Grant of Probate through the post.
This entitles you, as the Executor, to commence collating the assets and then begin the process of division and distribution to the beneficiaries.
However, it’s advisable not to allocate any of the estate for at least six months after the date of death. This permits any unexpected claims to be made before the assets are divided.
The duty of allocating the assets in a timely fashion is yours. Should you unnecessarily delay or procrastinate — and potential beneficiaries can show they experienced harm or loss through your dilatoriness — you could be found liable.
For more information on the role of an Executor — and how Falzon Legal can assist you through the process — take a look at our Guide to Executorship.
What Is the Cost of Probate?
To apply for a Grant of Probate with the Supreme Court Probate Registry — you need to pay a set filing fee.
The costs stated by the Court increase with the value of the estate — with some amounts under a certain value being exempt. Typically, the fee increases slightly every year.
There are occasions where additional costs may need to be paid. Most usually, this is required for:
- Placing the Will with the Court for safe storage.
- Filing necessary accounts of the estate of the deceased.
- Obtaining a certified copy of the Will.
Falzon Legal — Your Compassionate Probate and Deceased Estate Lawyers
If you’re the Executor of a friend or loved one’s estate — seeking Probate is often necessary to allow you to commence your duties.
Yet, it can come at an emotionally difficult and anxious time.
As experienced Probate and Inheritance lawyers, Falzon Legal will navigate you through the whole process. Clearly explaining and assisting with your duties and requirements — ensuring a smooth pathway to the Grant of Probate.
But, we’re more than simply diligent and professional legal advisors.
We know the stress of responsibility and the heartache of loss you may concurrently be feeling. Ceaselessly supportive, our attention extends past statutory requirements, and into solace and comfort.
We cannot heal the pain — but we can ease the burden.
Meeting at our office in Parramatta, or in your home, we deliver unmatched face-to-face assistance, encouragement, and advice. Leading you considerately through the pathway of Probate application to ensure a reassuring outcome.
What Is Probate FAQs
Who Can Apply for Probate?
The Grant of Probate must be applied for by the Executor named in the deceased’s Will.
Do I Need To Advertise Probate Notices?
Yes. This is a legal requirement in NSW. You must advertise your intentions to apply for Probate online — 14 days before applying to the Court for Probate.
Where Can I Find Probate Solicitors Near Me?
Don’t search online for Probate and Wills solicitors near me, you’ve already found us! With our offices located in Parramatta, we service all of Sydney. What’s more, we can meet in your home if preferred.
What Is a Grant of Representation?
This is another name for the Grant of Probate. It permits the Executor to address the estate of the deceased.
Do All Wills Have To Go Through Probate in Australia?
No. Certain conditions — such as low asset values or property being held in joint tenancy — may negate the requirement for Probate. Call us to discover how to avoid Probate in Australia.
Is Deceased Estate Administration Difficult?
Estate administration is a requirement of the Will’s Executor — who is responsible for collating the assets, satisfying liabilities, and distributing the estate to beneficiaries.
Completed after Probate, it’s important to be done correctly and in a timely manner. At Falzon Legal, we will guide you through both the Probate application and the duties of Executorship.