Probate and Grants of Administration
We all know that one day we and our loved ones will pass away, but despite that when a loved one leaves us it remains a time of shock and despair. When you have been appointed to manage a person’s affairs after their death it will invariably be a close loved one that has died, a spouse or a sibling. The burden of getting on with the job at hand, crossing the T’s and dotting the I’s can be a difficult task in such a time of grief. Our Probate lawyers understand the grief that you are going through and make it their mission to add some comfort and clarity in your time of need. Our Probate lawyers can guide you through the complex legal paperwork and allow you time to grieve for the person that has passed, whilst still honouring their last wishes.
What is Probate?
When a person dies leaving a Will, which leaves assets in NSW, it is likely that the person they have named as executor will need to make an application to the Supreme Court of New South Wales in order to deal with those assets. Making this application is known as making an application for Probate. Only once the application for Probate has been Granted by the Supreme Court can the executor deal with the Will and divide the deceased person’s assets according to the wishes as set out in the Will.
Do I need to apply for Grant of Probate, or can I just divide the assets myself?
This will depend on what the assets are and how they are owned. For instance, a husband and wife will often own property as joint tenants and in this case there will be no need to apply for Probate as the proeprty can be automatically transferred to the remaining spouse. In this instance there is no need to apply for a Grant of Probate. Similarly, if the estate is made up of cash in joint bank accounts, the account will automatically transfer to the other person. You will need to apply for a Grant of Probate in any estate involving real estate owned solely by the deceased, or in instances where there is significant funds held in cash in bank accounts or where there is significant superannuation funds left to the deceased persons estate. Our Probate lawyers offer a free 30-minute consultation and can guide you through whether you need to apply for Probate and in the event that you do, our Probate lawyers can advise you on your next steps.
What about Funeral Expenses?
It may be possible to withdraw funds from the bank account of the deceased for funeral expenses. Often people now have insurance or pre-arranged plans with funeral homes for their funeral and you should check through the personal papers of the deceased to enquire if that is the case.
What is an Executor? I have been appointed as Executor, what do I need to do?
If you have been appointed as an executor in a Will, it is down to you to collect the deceased person’s death certificate, make funeral arrangements and dispose of the ashes or bury the body. You are also required to find the Will and sift through the deceased persons personal papers with a view to obtaining bank statements, ATO statements, superannuation statements and any other information you might need in order to collate the assets of the deceased. Once you have made a thorough search then you need to consider whether you need to make an application for Probate. Our Probate lawyers offer a free 30-minute consultation and can guide you through the process and whether an application for Probate is necessary.
The Supreme Court charges a filing fee for Probate and then there are legal fees on top of this, if you can avoid having to make the application for Probate, it could save you thousands of dollars. In the event that you do need to apply to the Court for the Grant, then our Probate lawyers can take care of this for you. We can publish the required Notice of Intended Application for Probate, prepare the necessary forms and affidavits and submit the application for Probate to the Supreme Court.
How long does it take for Probate to be Granted?
Before making an application for Probate, you will need to obtain the death certificate from the funeral director. This can take up to 6 weeks. In the interim we would advise that you sift through the personal papers of the deceased with a view to locating paperwork that may point you in the directions of assets and liabilities.
Once you have obtained the death certificate our Probate lawyers can publish the necessary notice and prepare the paperwork for the application to the Supreme Court. You must wait a period of 14 days after publishing the notice before making the application to the Supreme Court for Probate. During this 14-day period, our Probate lawyers will require that you sign various affidavits, which they will prepare on your behalf.
The Supreme Court charges a filing fee based on the size of the estate and if you pay this from your own funds, you will become a creditor to the estate and be reimbursed upon distribution of the assets. The length of time the Supreme Court takes to make the Grant will depend on their current workload and is usually between 4 – 6 weeks. It may be the case that the Supreme Court raises requisitions/questions in relation to the estate and it is important for this reason to have a professional solicitor prepare the application for you, as if requisitions/questions are raised, it can delay the whole process.
Probate has been Granted. Now what do I do?
Once Probate has been Granted and before you can do anything with the assets, you need to have published a Notice of Intended Distribution. This Notice of Intended Distribution will advise creditors and other potential beneficiaries that you intend on distributing the assets in accordance with the Will and it will provide a time period, usually 30 days’ notice, during which time these creditors and potential beneficiaries can approach you in relation to the distribution. Once this time period has passed, and provided the deceased has already been deceased for a period of 6 months, you can then distribute the assets according to the terms of the Will.
How you distribute the assets and carry out the other necessary tasks will depend on the terms of the Will and any trusts contained in same; the age and working status of the deceased; and the assets and liabilities of the deceased. For instance, has the deceased left a specific gift to someone? Has their superannuation formed part of the estate? Was there real estate included in the assets and if so, how was it owned? Was there a car and was it left to a specific person or is it to be sold? How is real estate to be gifted? For instance, is it left to a specific person or is it to be sold? Was the deceased still working? Is there a tax return to be filed? What about land tax? Real estate agency fees? Is there a trust to be set up to care for minor children? This is just the tip of the iceberg in the relation to the questions that you need to be asking yourself.
It is also extremely important that as Executor you keep records of account. You should open a bank account in the name of the deceased. This account will be known as The Account of the Late John Smith. To this account you should transfer all realisable assets i.e. assets that have been sold and cash that has been collected and from this account you can make distributions to beneficiaries, pay creditors and retain the statements, showing a record of account. The Supreme Court can request at any time that you file the statement of account and as such it is important to keep these records.
Collecting and distributing the assets of the deceased and complying with the terms of the Will is not a simple task. Our Probate solicitors can assist you in complying with your obligations and simplify what can be a time consuming and daunting task. There are also specific rules as to who is responsible for the upkeep of mortgage repayments and who is entitled to interest earned, which our Probate lawyers can guide you through.
A family member has been appointed Executor of the estate and is refusing to distribute the estate or apply for a Grant of Probate. What can I do?
If a family member or other person has been appointed as executor but is refusing to take any action, you can file a form with the Supreme Court requesting that they either take action or renounce their position as executor. This is not a step that anyone takes lightly but if you feel that you have been forced into taking action our Probate lawyers can guide you through this process.
In addition, if the executor makes the application for the Grant of Probate but once Granted fails to distribute the estate you can apply to the Supreme Court to have the Grant revoked and make a further application for Probate to the Supreme Court requesting that another person be appointed executor.
Why use us?
- We pride ourselves on telling you all of your options, including when you don’t actually need us or any solicitor and can save money by carrying out some simple tasks yourself.
- We delay our legal fees until Probate has been Granted.
- We are always available to answer queries and understand that this is a difficult time for all involved.
- We have many years’ experience in these matters and can point you in the right direction for every turn required.
- We offer a free 30-minute consultation, which may be all you actually require in order to carry out the job alone.