What is Probate?

Probate is a Court order that confirms the deceased's Will is valid and legally binding, which then allows the deceased’s assets to be distributed according to the terms of the Will. The court of Probate is the Supreme Court in each State and Territory.

What does Probate involve?

• Validation of the Will: This requires proving that the willmaker (known as the testator or testatrix) had the necessary mental capacity, was not under undue influence or misled by fraud when making the Will, and the Will was properly executed.
• Appointment of Executor:  The Executor is the person named in a Will to carry out its terms. By granting Probate to the nominated Executor, the court recognises the Executor’s authority to administer the estate. The Executor must ensure that all debts and taxes of the estate have been paid before distributing the remaining assets to the beneficiaries as specified in the Will.
• Provision of documents: In the application for Probate, the Executor must provide the Court with the original Will, a certified copy of the death certificate, an affidavit from the executor, and a detailed inventory of the deceased's assets and liabilities. Other documents may also be required by the Court such as an affidavit of attesting witness which is a sworn or affirmed statement by one of the witnesses to the testator signing their Will. This is often required if there questions as to the testator’s capacity at the time of executing the Will.

Who can apply for Probate?

It is the legal right and responsibility of the Executor to obtain a Grant of Probate. If the Executor named in the Will does not want or is unable to act, they can file a Renunciation of Probate form with the Supreme Court of NSW. Any substitute executor named in the Will can take their place to apply for Probate.

Time limit for applying for Probate

The nominated Executor should apply for Probate at the Supreme Court of NSW within six months from the date of death of the deceased. If it has been more than six months, the Executor will need to provide an explanation for the delay in an affidavit as to delay. 

Why is Probate needed?

In most cases, Probate is required before the Executor can access and manage the assets of the estate such as bank accounts and investment funds. This safeguards the Executor and reduces the liability risk for the asset holder.

Probate is even more crucial when there is a dispute about the validity of the Will or the distribution of the estate.

When the deceased dies without leaving a Will (known as ‘dying intestate’), a similar process called applying for Letters of Administration is followed, where the Court appoints an Administrator to manage the estate according to the rules of intestacy.

When is Probate required in NSW?

The entities holding the assets of the deceased usually specify an asset value threshold in their 'estate transfer policy.' If the asset value exceeds this threshold, a Grant of Probate will be required.

Probate is generally required in NSW if the assets are owned solely by the deceased and it’s value exceeds a certain amount. This typically involves:

• Real estate properties in the deceased’s name alone or as tenants in common;
• Any bank accounts held in the deceased’s name alone, exceeding $50,000 of value (please note that this is the general value used by most financial institutions, but the actual value may vary);
• Any shareholdings in the deceased ‘name alone, such as shares in publicly listed companies;
• Other assets exceeding $50,000 of value.

Probate is generally not required in NSW if all assets are jointly owned (for example, a property owned by joint tenants, joint bank account), or the value of the assets is not significant  

PW Lawyers have assisted numerous clients in obtaining Probate. Please contact us to make an appointment with an estate lawyer.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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