Probate – what is it?
Usually, a deceased person will have left a valid Will that nominates an executor – someone who has accepted the position of administering the estate in conformity with the intentions of the Will.
Some parts of an estate may be owned jointly – the usual example is a jointly owned property, and another is a bank account in joint names. For these examples, when one of the joint owners dies, the asset automatically passes to the remaining owner under the principle of right of survivorship. It should be noted that this applies to ownership as joint tenants, and not to tenants in common arrangement, which is treated differently.
Probate is an order issued by the Supreme Court of NSW that:
- States that the Will is valid
- Gives authority to the executor to administer the Will
If there is no Will – the person died intestate – or there is no executor, or the executor does not wish to accept the role, then the Court may issue letters of administration upon application by a next of kin, family member, or close relative.
These give similar authority to probate and enable the estate to be rightfully administered by an approved person.
Must you apply for probate?
Where the estate comprises assets that are individually owned by the deceased, then in general terms the executor needs the authority of probate to distribute them. However, various financial institutions will have their own in-house rules on what amounts need authority. Figures in the range of $20,000 to $50,000 are typical. The actual figure can be ascertained by a formal enquiry about an institution’s deceased estate transfer policy. It should be noted that if there is a sole-owned property involved, then probate will already be required in order to transfer that as per the Will.
When should probate be applied for?
If probate is to be applied for, one of the first duties is to publish an intent to make application with the NSW Online Registry, after which it is necessary to wait 14 days before application for probate is made. The reason for this is to allow creditors or other parties with an interest in the estate to make claim prior to the submission of the probate application.
At the other end of the timeline, application for probate should be made within 6 months of the death. Should this be exceeded then a full and formal explanation should be provided to the Court.
How is probate applied for?
The Court requires several forms, including:
- Summons for Probate
- Grant of Probate
- Inventory of property
- Affidavit of executor
- The Will
- Death Certificate
The executor should get straight onto putting this information in place, particularly a proper list of assets with associated proof of ownership.
The Supreme Court has a published list of fees, and in the case of probate, a couple of examples from their current schedule are (for gross value of NSW assets):
- $250,000 to $500,000 $1,088
- $500,000 to $1,000,000 $1,669
- $1,000,000 to $2,000,000 $2,224
Law firms also have standard fees for the purposes of handling probate application, but it should be noted that those fees do not include any disbursements (such as the above court fees), nor the handling of estate administration.
Executors have an arduous list of tasks on their plate, often under already stressful circumstances, making proper legal advice from lawyers who handle these matters every day of immeasurable value.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.