Probate is a legal process that transfers the assets of a deceased person to their beneficiaries. It is a lengthy and complicated process, especially in New South Wales (NSW), which has unique laws and regulations regarding probate. However, this article intends to simplify the procedure and make it easier to navigate. If you are mourning the death of a loved one and need to handle someone’s estate, this guide will provide the details of what you need to know about probate in South Australia, NSW.
What Is Probate?
Probate is the process by which a court recognises the validity of a Will and orders the distribution of assets according to the deceased’s wishes. The procedure is either called “granting probate” or “granting letters of administration”. In NSW, the Supreme Court handles the process and grants probate through a court order known as Letters of Probate or Letters of Administration. This document proves that the executor can administer and distribute assets from an estate according to the wishes stated in a Will.
Is Probate Necessary?
If an individual dies, leaving behind any real property such as land or buildings, or having bank accounts with more than $15,000 held in their name alone, then probate may be necessary so that the legal heirs can acquire the property. However, certain property types, such as superannuation benefits and life insurance policies, may not require probate. It’s because the companies assign these properties as “payable on death” (POD). In these cases, beneficiaries can claim those funds without going through probate proceedings.
Who Can Apply for Probate in NSW?
The executor can apply for the grant of Probate in NSW or elsewhere in Australia. The only eligibility to be the executor is that one must be 18 years of age and have their name as an executor in the deceased’s Will. If the executor cannot act, the Supreme court shall appoint someone else to carry over the proceedings.
How Can I Obtain a Probate?
Receiving the grant of probate in NSW or elsewhere is a smooth process if one follows all the necessary steps. Below is how you can seamlessly apply and acquire the grant of probate-
Gather All the Documents
Before proceeding with the probate application, the executor must have all the necessary documents. In case you miss showing up on any of the essential papers, it will delay the proceedings. Here is a list of all the key documents to have before the probate-
- Original copy of the Will
- Original copy of the death certificate
- Affidavit of the executor
- Summons for probate
- Grant of probate
- Record of all the property
- Affidavit of the executor
Publish the Probate Notice
The executor must begin the procedure by notifying the Supreme Court of NSW, Australia, regarding their intention to apply for the grant of probate. The NSW Online registry shall help as you can fill in the form and pay the requisite fees.
Wait for 14 Days
After filing the application, the executor must wait 14 days before applying for the grant of probate. The period is for anybody to object to the probate filing.
File the Probate Application
After the waiting period, one can apply for the grant of probate at the Supreme Court of NSW. Always ensure that all the requisite documents are in hand during the procedure so you can avail of fast approvals.
Answer the Requisitions
If the Supreme Court of NSW finds that you will need to submit more information to receive the grant of probate, they shall send requisitions. One must answer each of these to speed up the court proceedings. You can also approach legal help to answer the requisitions so that there is a timely release of the grant of probate.
Receive the Grant of Probate
Once the Supreme Court of NSW finds all the documents satisfactory, they shall provide you with the grant of probate. After that, you can begin administering the estate.
When Should the Executor Apply for the Grant of Probate?
Supreme Court governs the deadline for submitting a probate petition Rules 1970, Part 78 Rule 16. If a probate application is submitted more than six months after the decedent’s passing, the executor must provide a justification for the delay to the court. The executor can accomplish this in one of two ways:
- Inserting a justification in the executor’s affidavit
- Filing a separate Affidavit for Delay.
Affidavits of Delay do not have a specific form that is required or accepted. If you’re drafting an Affidavit of Delay separately, modify the UCPR Form 40, label it “Affidavit of Delay,” and explain the reason for the delay in the body of the affidavit.
How Long Does Probate Take In NSW?
In New South Wales, the grant of probate procedure should take one week from the time you deliver to the Supreme Court all the necessary documentation. However, a more reasonable time range is between 2 and 6 weeks, depending on the number of candidates on the waiting list.
The court will write to you if anything is incomplete or incorrect, informing you of the issue and recommending a course of action.
Ensure that you have all the required forms duly filled and the necessary documents to support your statements. Your application will have to reenter the line if the court issues a written request for any requisitions.
Navigating probate law can be complicated, but knowing what to do when it’s time to distribute your loved one’s estate can help make things simpler during this difficult time. Hopefully, this guide helped provide insight into how probating works here in New South Wales so that you can better prepare yourself for this process if needed. Always remember that there are professionals available who specialise in helping individuals navigate complex legal matters such as these. You can always seek their services if required.
Probate Consultants offers fast and reliable services so that you can acquire the Grant of Probate or Letters of Administration at the earliest. We realise it isn’t easy to cope with the loss of a loved one and simultaneously gain access to the estate and distribute it according to their wishes. Therefore, we take over the entire procedure, helping acquire probate at the earliest and lowest prices.