PROBATE

Obtaining Probate on the last will of the deceased will not always be required. For example, if the deceased owned all of their assets jointly with another person, then those assets will pass to the “surviving joint tenant” in accordance with the rules of survivorship. That is, the person that outlives the other joint owner will receive the whole of those assets that were otherwise jointly owned.

Superannuation is also not deemed an asset of a person’s estate unless the trustee of the superfund in which they have invested monies directs payment of the deceased’s entitlement to their estate. Claims for super benefits can be made directly to their superfund essentially bypassing their estate.

Another instance where Probate may not be required is where the deceased may only hold a small sum of money invested with a bank, for example $10,000.00. Each financial institution will have differing thresholds and requirements as to whether a grant is needed in order to release funds, though usually a certified Death Certificate, certified copy of the deceased person’s Will and proof of identification is sufficient enough to release funds.

There are many steps required in order to obtain Probate on the deceased’s last will. These include, in order:

1. 1. Obtaining the deceased person’s Death Certificate and original Will (if not held by the solicitor instructed to apply for Probate);
   2. Ascertaining the extent of the estate i.e values of assets and liabilities, as well as advising all relevant authorities as to the deceased person’s death;
   3. Informing the beneficiaries of the deceased person’s estate that they are beneficiaries and providing a brief outline of what they can expect throughout the probate process;
   4. Notifying the executor’s intention to apply for probate of the will;
   5. Preparing the executor’s application for Probate which includes a Summons, Affidavit, Inventory of Property and Grant of Probate document;
   6. Filing the executor’s application with the Supreme Court of New South Wales;
   7. Responding to any requisitions (questions) the court may raise as the case may be;

Once the court has issued Probate, the executor can then proceed to administer the estate, which includes:

1. 1. Calling in the assets as the case may be including, closing bank accounts, selling shares, real property and motor vehicles and paying liabilities such as mortgages, loans, credit cards, tax liabilities and any outstanding debts;
   2. Corresponding with the beneficiaries to provide them with reasonable updates as to the administration of the estate;
   3. Advertising the executor’s intention to distribute the estate;
   4. Distributing the estate assets in accordance with the deceased person’s will.

The cost to obtain Probate of the deceased’s last will ultimately depends on the value of the estate.

The costs associated solely with the application for Probate, but not administering the estate, are determined by a scale of fees set by the Legal Profession Uniform Law Application Regulation 2015 as follows:

There are also filing fees on the application itself set by the Supreme Court of New South Wales, calculated on the gross value of the estate as follows:

In addition to the above costs, there may be other associated costs with obtaining a Death Certificate and determining estate assets such as property searches.

The cost of the Probate application and administering the estate is paid out of the deceased’s estate and not out of the executor or beneficiary’s pocket.

Applications for Probate should be made within 6 months from the date of death. If they are not, then the executor must file an additional affidavit with their application explaining the reason for their delay.

An executor also risks a beneficiary or person interested in the estate, creditor, or NSW Trustee and Guardian applying for Letters of Administration with the Will annexed if the will is not proven within 3 months from the deceased’s date of death.

One of the initial steps in obtaining a grant is to determine the extent of the deceased assets and the estate and to advertise the executor’s intention to apply for Probate. An executor cannot apply for probate until 14 days after the executor advertises their intention to apply for Probate.

Once 14 days has lapsed, the extent of the estate is determined and the application documents are prepared the application may then be filed with the court.

The Supreme Court of New South Wales usually takes between 3 and 6 weeks to review the executor’s application and issue the grant. If the court raises requisitions (request for further documents) then the process will be slightly longer.

Section 86 (1) of the Probate and Administration Act 1898 (NSW) provides that an executor may be allowed to be paid commission for their pains and troubles in acting as executor.

The amount an executor is entitled to request be paid is based on the extent of the assets and what is required of them to administer the estate. The beneficiaries must either agree on the amount requested or, if agreement cannot be reached, then the executor must apply to the court for commission.

If an executor receives a legacy under the deceased’s will as a condition of them taking on the role of executor, they are less likely to be entitled to a “reward” for acting as executor.

Further, if an executor is a beneficiary of a person’s estate, it may be more difficult to seek a reward, however, this will depend on many factors including how much they are left under the will.

If an executor is not a beneficiary of the deceased’s will, then they may ask for commission to be paid to them out of the estate.