What is Probate?
Essentially, Probate is a “Certificate” from the Supreme Court of New South Wales recognising the Executor (the person named in the Will as the person to wind up the Estate), as the LEGAL PERSONAL REPRESENTATIVE of the Will.
After Probate is obtained, all bodies and organisations holding assets on behalf of the deceased can recognise, or “do business with” the Executor.
When is Probate necessary (and possibly not necessary)
The Executor will need a Grant of Probate when there are “assets to administer”. Some examples are:
• Sale of Real Estate, surrendering leases in retirement villages, receiving refunds from Aged Care facilities
• Banks and other financial institutions vary their “starting point” for Probate from $20,000.00 up to $50,000.00.
Probate is not necessary where Real Estate is owned “as joint tenants” with a surviving owner, or where bank accounts are held jointly.
Applying for probate may also be appropriate in other circumstances – if a person’s Will is contested, for example.
If you are in the position of wanting to contest a Will, we can assist. Call now.
In addition, a grant of probate is generally required before a deceased person’s real estate can be transferred to someone else. However, according to the Supreme Court of New South Wales, this may not be necessary if the deceased owned all their property jointly with another person who is still alive. In this case, ownership would transfer to that second person and no probate would be necessary.
Don’t forget to consider that probate is administered slightly differently in different parts of the country, so you may wish to check with your local Supreme Court or obtain legal advice to confirm what the laws are where you live.
What happens if Probate is not obtained
Sadly, if an Executor deals with money and/or other assets in an Estate without a Grant of Probate, that Executor may be personally liable for any losses suffered by the beneficiaries. IT PAYS TO “PLAY BY THE RULES”.
How do you obtain a “Grant of Probate”
This is done by filing a Summons and Supporting Affidavit in the New South Wales Supreme Court. There is preparatory work to do, as the Executor must reveal to the Court “all assets in the Estate”, which are shown in the “Inventory of Property”.
It may take weeks or months to write to various organisations to be able to complete an accurate Inventory.