What is Probate? (Guest Contributor: Emma Rowles – Winter Legal)
When someone passes away, their assets, liabilities and legal affairs must be finalised — a process known as administering the estate. In many cases, this involves obtaining a grant of Probate, which is only required under some circumstances.
A grant of Probate is needed when the deceased had a valid Will, and the estate contains assets that require a grant of Probate. For example, real estate owned as Tenants in Common, or bank account funds that exceed the institution’s threshold.
A grant of “Letters of Administration” is required if the deceased did not have a Will, and the estate contains assets that require a grant of Letters of Administration.
For those residing in NSW, the “grant” is issued by the NSW Supreme Court. It is a legal document that authorises the Executor/Administrator to administer the estate.
Sometimes an asset holder, such as a bank, may initially advise that they require a grant of Probate or Letters of Administration. However, they may agree to waive the requirement. This will save on fees and time in administering the estate.
Sometimes the assets in the estate do not require a grant of Probate or Letters of Administration, however, the estate still needs to be administered. The Executor is personally liable to any creditors of the estate, so it is important to properly carry out the administration process.
The Executor is the person named in the deceased’s Will to administer the estate, as outlined above. If the deceased does not leave a Will, the Supreme Court appoints an “Administrator” for the estate.
Whether you’re an Executor or Administrator, your responsibilities may include the following:
– You may need to obtain a grant of Probate or Letters of Administration, as outlined above.
– Arrange for the assets of the estate to be transferred to those entitled.
– Arrange for the debts of the estate to be paid, some of which may be written off.
– Attend to administration tasks such as notifications and tax returns.
Many people often believe that the grant of Probate or Letters of Administration will take months or years to be made.
Provided that the precise documentation is provided to the NSW Supreme Court, it should not take this long for the Court to make the grant.
People also often think that administering an estate is going to be stressful. When we act for clients administering estates, we make the process as simple as possible. Clients often comment afterwards that they were surprised how simple and quick the process was.
It is possible to apply for Probate or Letters of Administration without legal assistance – known as DIY Probate. However, it is highly probable that you will be issued with a “Requisition” by the Supreme Court.
The Court sends Requisitions asking for further information or documentation. Receiving Requisitions significantly slows down the application time for receiving the grant of Probate or Letters of Administration.
The information and documentation that the Court requires is extremely specific.
If you’re facing the responsibility of administering an estate and unsure where to begin, legal support can save time and reduce stress. Probate is just one part of a broader picture — if you’re thinking ahead, it’s also worth considering estate planning as a whole to ensure everything is in order for you and your loved ones.
Emma Rowles, Director of Winter Legal, practises exclusively in Probate and Will Disputes. She previously worked at the NSW Supreme Court and has nearly 20 years of experience.
You can contact Emma directly for assistance:
📧 emma@winterlegal.com.au
📞 0415 677 407
Disclaimer: This article is general in nature and does not constitute legal advice. For advice specific to your circumstances, please consult a qualified legal professional in your state.
Liability limited by a scheme approved under Professional Standards Legislation
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