The Process of Probate

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What does probate mean?

To answer the question most literally, probate derives from the Latin probātum, meaning a thing proved.

In practice, a Grant of Probate is an authority issued by the NSW Supreme Court that verifies the death of the deceased (the testator), and that they left a valid Will, with an Executor named in that Will who is both willing and capable of executing their duties to administer the estate plan.

That sounds straightforward enough, but it raises some considerations.

If there was no Will, or the named Executor is unable or unwilling to act, then by definition, there can be no Grant of Probate since it is the Executor who must apply. In such cases, the next of kin or named beneficiaries must apply to the Supreme Court for Letters of Administration – a similar process, but with some differences.

A Grant of Probate is not compulsory, per se, but may be required by some institutions before they will release funds or assets. Institutions have various limits, in general terms, roughly between $20,000 and $50,000. If the deceased had minimal assets, then probate will not be required.

Assets from life insurance policies or superannuation do not necessarily pass to the estate, but rather, directly to the nominated beneficiary. However, even in these cases, trustees may require authority in the form of probate before they will act.

Similarly, assets held in joint names – typically, a family home, or bank account – pass directly to the joint owner, and do not go to the estate.

When someone dies in NSW their assets are vested in the NSW Trustee. Once probate is granted, the assets are then vested with the nominated Executor, who shall distribute them according to the instructions of the Will.


What is the process?

A Notice of Intention to apply for probate must be filed with the NSW Online Register, and must remain in place for 14 days before further action. This enables creditors of the deceased, beneficiaries, or anyone wishing to challenge the Will, to make a claim.

After 14 days, the Executor may proceed with an application for probate to the Supreme Court. 

The following is the essential list of documents:

  • Summons of Probate – UCPR 111
  • Affidavit of Executor – UCPR 118
  • Original Will, and any codicils that may apply to the Will
  • Original Death Certificate
  • Inventory of property – UCPR 117
  • Grant of Probate form – UCPR 112 – 2 copies

The various UCPR (Universal Civil Procedures Rules) forms are listed on the NSW Government website.

Application for probate should be made within 6 months of death. Should that time limit be exceeded, application may still be made, but the Executor should present an explanation to the Court.


Other factors

A NSW Grant of Probate only has authority in NSW, yet often, the deceased may hold assets interstate. In such cases, an Application for Reseal is made (yes, another UCPR form) and once granted, gives the Grant equal authority in the named state.

The death of a person overseas with a death certificate in a foreign language raises other issues – not insurmountable with proper guidance.

A Grant of Probate usually takes up to 20 working days.


Key Takeaway

Dealing with the death of someone close is stressful enough. Making an application for probate brings with it quite stringent requirements. It will be far easier and less fraught with administrative errors and consequent delays with professional legal assistance.

Estate and Probate Law – let us simplify it for you. It will be easier with sound legal advice from the experts. Contact Owen Hodge Lawyers today on 1800 770 780 or via email at [email protected]. We are here to help.

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