Obtaining Probate.
Preamble.
The word Probate means to prove or validate. Probate is the procedure by which a Will is approved by the Supreme Court of N. S.W. as the valid and last Will of a deceased testator (the person who made the Will). It also confirms the appointment of the person named as Executor in the Will. The Court gives the Executor documents, called the Probate, as proof of his or her authority to deal with the Estate.
There is no compulsory legal requirement to obtain probate in every single circumstance, however if you want to administer and distribute assets and have an unquestionable authority to do that at the same time protecting yourself from liabilities, then it is wise to seek a Grant of Probate. Real estate property which is in the name of the deceased always needs a Grant to administer it.
More on Probate.
Probate is the process of proving and registering in the Supreme Court the last Will of a deceased person. Resolving all claims and distributing the decedent's property under the valid Will. Probate is a service that provides to confirm the validity of a deceased person's Will. Once a Will has been Probated by the Court, everyone can rely on its authenticity. It is usually the Executor of their Will who administers the Estate and handles the disposal of their assets and debts. In order to get authority to do this, they usually need to obtain a legal document called a 'Grant of Probate'. Challenges to the validity of a Will affect the Grant of Probate and delay the process of the division and distribution of the Estate. We have experience in litigating these contested matters. Many challenges lie in the jurisdiction of Equity - a branch of the Supreme Court deals with such cases.
Why should you prefer Dom Velcic & Co to process your probate? When you lose a loved one your whole life changes. We understand that your family, future and family's legacy are at stake. You need a lawyer whom you can trust and is sufficiently skilled to get you the right and swift outcome.
How long does a grant of probate take?
A grant of probate normally takes just more than a week from the time of lodging a correct and complete application. This however can be delayed if the Court seeks further information known as Requisitions which are usually sought within 3 days of filing. These requisitions need to be answered and the application does not progress unless an answer to the requisition is received. Usually the whole Probate process from the initial application to distribution should be completed within 6-8 months (that is all applications made, assets collected and distributed and accounts completed).
This time estimate does not include litigation or contested matters which may take longer. We understand the importance of probate matters as they impact your private and professional life and give it the attention it deserves in the circumstances which are often difficult.
We offer flexible fees which are competitive - more information is available on this website. The majority of our clients opt for the flat fee option, providing certainty of service and capping costs. We have a high success rate in contested matters and continual client satisfaction are perfect examples of our dedication.
Once the necessary procedures are followed and correct materials filed with the Supreme Court seeking Probate the Executor/Executrix is able to carry out what is necessary to execute the Will. The forms usually required for a simple probate application are Form 90, 91, 95, 96 or 97.
When do you need Probate?
It depends on the nature of the assets, the beneficiaries and the Will. Often, the Will is sufficient to give the Executor all the powers of action needed to settle the Estate.
If the Will is particularly complex or if the administration of the Estate may take several years to complete, it is wise for the Executor to obtain Probate. The Probate provide official recognition of the authority of the Executor over the testator's Estate, for example, to recover money owing to the testator or to transfer certain assets in accordance with the instructions in the Will. As well, Probate may be necessary if the Executor expects that somebody may contest his or her right to act as Executor.
How does one obtain the Probate?
The person requesting the Probate may apply to the Supreme Court.
What fees must an Estate pay to obtain the Probate?
The fees payable to Supreme Court for the Probate are in addition to our legal fees. The fees are based on the value of the Estate. Generally, the Supreme Court fee schedule is as follows:
Value of The Estate Being Administered Fee for Grant of Probate :
Probate (less than $50,000) Nil Fee
Probate ($50,000 or more, but less than $250,000) $634
Probate ($250,000 or more, but less than $500,000) $800
Probate ($500,000 or more, but less than $1,000,000) $1,206
Probate ($1,000,000 or more) $1,605
Search for a Grant or resealing of Probate (for each file searched) $48
Lodge caveat against a Grant or reseal of Probate $34
What is the role of an Executor? How do I get a copy of the Will?
The Executor locates the will, applies for probate, determines the beneficiaries, collects and distributes the assets, ensures all debts and liabilities of the estate are settled, prepares the estates accounts, files all returns and pays any taxes, collect monies and invest them if required pending distribution, may be involved in defending the estate in Court against claims and can claim for the work done. A copy of a will (aka exemplification) takes at least 14 days after lodging an application.
What happens if a person dies without leaving a Will?
When someone dies without a valid Will (called Intestacy), the Supreme Court must then appoint someone to act as administrator (rather than Executor) of the Estate. The Court makes this appointment upon the application of someone qualified to act in this capacity. Usually the Court appoints a member of the family, or if there are none, a close friend of the deceased. The administrator may then apply and pay for the Letters of Administration in the same way as for letters Probate. The fee schedule for the letters Probate also applies to Letters of Administration.
What is the role of an Administrator?
The role of the administrator is similar to that of an Executor named in a Will. The administrator collects all money due to the Estate and pays the debts. Once the debts are paid, including income tax, the administrator's duty is to sell the assets of the Estate and distribute the proceeds.
Also read our section on Letters of Administration.
