WHEN THERE IS A SURVIVING HUSBAND/WIFE OR DE FACTO PARTNER
- In most cases probate is not required if a husband/wife or de facto partner is the sole beneficiary of the assets of the deceased, although it may be necessary to have joint assets, such as the family home, shares, car etc. transferred to the name of the surviving husband/wife or de facto partner. A copy of the Will and Death Certificate should be provided when doing this.
- In some cases where investments are involved, there may be a need to apply for Probate.
- A Death Certificate and copy of the Will is usually required to transfer joint assets to the name of the surviving husband/wife or de facto partner.
- A Notice of Death needs to be filed with the Department of Lands if joint property needs to be changed to your name.
WHEN THERE IS NO SURVIVING HUSBAND/WIFE OR DE FACTO PARTNER
- If there is no surviving husband/wife or de facto partner, it is necessary to make an application to the Supreme Court of the State that the assets are located for probate to be granted. This is the responsibility of the Executor and Trustee of your Will, although the Executor usually asks a lawyer to do this as there is a specific legal process to follow.
- The Executor needs to make a list of all of the assets and liabilities of the deceased This should include the full names of any financial institute and the account numbers, full details of any investments, details of any real property owned by the deceased and a market appraisal of its value, details of any motor vehicle or other belongings of value and their market value and business in which the deceased owned a share.
- The Executor also needs to obtain a copy of the death certificate and the original Will of the deceased as these will need to be provided when organising for the release of all assets, and for an application for probate to be made to the Supreme Court.
- None of the deceased's money can be used until probate has been granted except for the payment of the funeral and wake.
- Either the Executor or lawyer needs to write to any banks, brokers or other institutions that may hold money owned by the deceased and ask for the balance of any accounts.
- The next step is for an advertisement to be placed. It is now possible to advertise the death and notice that probate is being sought on the Supreme Court of NSW website. The notice will include either the Executor's name and contact details, although usually a lawyer is asked to manage all of this.
- There is a period of 14 days after the notice has been published before probate can be applied for.
- The forms that need to be filed at the Supreme Court are an original copy of the Will, Death Certificate and newspaper notice, an affidavit signed the executor with a list of all the assets and liabilities and a Summons for Probate usually signed by the lawyer. A grant of probate form is also included which is returned with the Court Seal and copy of the Will when probate is granted.
- Once probate is granted, copies of the grant of probate are provided to anyone who holds assets of the deceased, including banks, investment brokers etc. Any money held can then either be paid into an account in the name of the deceased until it can be distributed.
- A Transmission Application is sent to the Department of Lands with the grant of probate so that any real property can be transferred to the Executor who can then sign any documents for the sale of real property.
- Either the Executor or the lawyer can then distribute the assets according to the Will after any liabilities have been paid.
- The filing fee for probate is according to a court schedule and is based on the value of the assets of the estate.
- There is also a schedule of fees for solicitors based on the value of the assets. This is for the application for probate only, and if the lawyer continues to manage and distribute the estate after probate has been granted there are usually additional fees for doing this.
- If any creditors make claims to money owed to them from the estate, if legitimate these claims need to be paid before the estate is distributed.
- If an eligible person makes a claim to a share of the estate, and has been left out of the Will, the estate should not be distributed until this issue is resolved.
- If it appears that the person has a legitimate claim, they should obtain a lawyers advice, and where possible any such claim should be negotiated between the parties and the lawyers, or by mediation.
- Any agreement reached in this manner should be formally made into a Deed stating what the parties have agreed to. If no agreement is reached, the person making the claim would need to make an application to the Supreme Court. Such claims are not uncommon, particularly with the complexities of family relationships and structures.
- If a claim is made to the Supreme Court, any legal fees are taken out of the estate before it is distributed. However, if a claim fails, it is the person making the failed claim who pays the costs. This can quite often result in a large amount of costs, so negotiated agreements should be considered first.
- The length of time before the estate can be distributed depends of the complexity of the estate and whether there are claims made. A simple grant of probate may take up to three months from providing all information, advertising and all procedures are completed. Complex estates, or estates where there are claims made on the estate can take longer.
