Q. What is a grant probate?
A. A grant of probate is where the Supreme Court of New South Wales verifies that a will is valid and enforceable, granting the executor authority to deal with the estate in accordance with the will’s instructions. This involves the court checking the following 3 things:
- That the deceased had capacity, in order words, had the mental ability to make a will in accordance with the NSW laws;
- That the will was properly executed, meaning properly signed and witnessed in accordance with the NSW attestation laws; and
- That the executor of the will has the authority to act in their role as executor in order to deal with and administer the deceased person’s estate.
Q. Why is a grant of probate so important?
A. Before a grant of probate is given, the assets of the deceased person’s estate cannot be distributed. In order to gift, transfer, sell or register assets, particularly in relation to real estate, a grant of probate is needed first.
This is very important to those who have been gifted something under the will (known as the beneficiaries) as they are not to be able to receive their gifts until probate is granted.
Q. Who can seek and/or get a grant of probate?
A. Only the person expressly named to be the executor in the will, or implied to be the executor from the wording of the will, can apply for, and obtain, a grant of probate.
Q. What is an executor?
A. An executor is responsible for carrying out all tasks required to administer the deceased person’s estate. These tasks involve paying outstanding debts that the estate may owe, keeping a record of accounts of the estate, distributing gifts to beneficiaries under the will and defending legal claims of any disputes against the estate and more.
People who have been nominated as an executor under the will, either expressly or implicitly, do not need to accept the role if they do not wish to, or are not able to accept.
Q. What happens if I do not accept my role as Executor?
A. In those circumstances, an administrator will need to be appointed by the Court. Administrators are discussed further down in this Q&A.
Q. How do I get probate?
A. The executor must first make a publication of a notice of their application for probate with the Supreme Court of New South Wales. Then, if after 14 days, no objection has been raised by anyone, an executor may apply for probate with the Probate Office of the Supreme Court of New South Wales.
Depending on each individual case, there can be various affidavits that will need to be attached to the application for probate, along with other supporting documents, which your lawyer can help you with.
Q. How much is my lawyer going to charge me to help me with my Application for Probate?
A. Lawyers fees are capped by Schedule 3 of the LEGAL PROFESSION UNIFORM LAW APPLICATION REGULATION 2015, in assisting an Executor or Administrator to apply for a grant of Probate or Letters of Administration. Below is the current table extracted from Schedule 3, being the costs for legal services for probate and administration matters of the Act:
Obtaining first time grant or the resealing of probate:
| Disclosed value of assets | Costs payable |
| Not exceeding $30,000 | $560 Plus $13.33 for each $1,000 up to $30,000 |
| Exceeding $30,000 but not exceeding $150,000 | $960 Plus $5.90 for each $1,000 in excess of $30,000 |
| Exceeding $150,000 but not exceeding $1,000,000 | $1,670 Plus $4.47 for each $1,000 in excess of $150,000 |
| Exceeding $1,000,000 but not exceeding $3,000,000 | $5,470 Plus $1.66 for each $1,000 in excess of $1,000,000 |
| Exceeding $3,000,000 but not exceeding $5,000,000 | $8,800 Plus $1.10 for each $1,000 in excess of $3,000,000 |
| Exceeding $5,000,000 but not exceeding $10,000,000 | $11,000 Plus $0.90 for each $1,000 in excess of $5,000,000 |
| Exceeding $10,000,000 | $15,500 |
Q. Are there time limits to applying for probate?
A. An application for probate should be made within 6 months of the date of the deceased’s death. If your application falls outside of this timeframe, then you will be asked to provide the Court with a reason for the delay in the form of an affidavit.
Please be mindful that delay of an application for probate can have costly consequences upon the estate, depending on the reason and the amount of delay.
Q. What if there is no will?
A. In circumstances where the deceased died without a will, or where it is found that the deceased left no valid will, a grant of Letters of Administration are required to be provided by the Supreme Court of New South Wales. A grant of Letters of Administration does effectively the same thing as a grant of Probate.
Q. Why is a grant for letters of administration so important?
A. The same reason why a grant of probate is so important. The assets of the deceased person’s estate cannot be distributed or administered until the grant is received.
Q. Who can apply for letters of administration?
A. You must be able to answer ‘yes’ to both of the following questions, in order to apply for letters of administration:
- Are you a person who is in Australia? and
- Are you a person who has a beneficial right to a share of the deceased person’s estate?
A person who has a right to represent the person who is able to answer ‘yes’ to the above questions can also apply. (Certain circumstances are excluded and if you want to know more you should talk to your lawyer about this).
Q. What is an administrator?
A. An administrator is a person, (or body authorised by statute to be an administrator), appointed by the Supreme Court of New South Wales, to administer the deceased person’s estate in circumstances where:
- There is a valid will but the executor has declined or is unable to carry out their role and duties as executor; or
- The deceased person died without a will or valid will.
Practically speaking an administrator has the same duties and responsibilities as an executor of the estate.
There are certain legal differences, such as a concept known as the ‘chain of executorship’ which applies to probate but does not apply to letters of administration, and a few other factors which you should speak to a lawyer about.
Q. Do you need a lawyer to apply for probate or for letters of administration?
A. No, you do not need a lawyer to apply for probate or letters of administration, however, it is recommended that you speak with a lawyer before you apply. There are numerous legal requirements and there can be quite a lot of paperwork involved.
Our skilled Wills & Estates Team can guide you through the entire application process for a capped fee and can also assist with any objections that may arise in response to the notice of the application. Call us on (02) 8006 1596 to discuss your application with us today.
Tel: (02) 8006-1596
Email: irma@langhamlawyers.com.au ; simon@langhamlawyers.com.au