When drafting our client’s Will we have often noticed that many people appoint an executor but do not fully understand the vital role they will play. One of the key roles of the executor after your death is to get a grant of probate. Below we will provide a basic breakdown of probate and the process of getting a grant of probate.
So what is a grant of probate?
Put in simple terms a grant of probate is a legal document issued by the courts. Estates in NSW will have their grant of probate issued by the NSW Supreme Court. The reason a grant of probate is important is that it provides executors the ability to consolidate assets of the deceased. An institution holding onto assets may request a copy or to sight the original grant of probate. Once satisfied they will transfer the assets into the care of the executor. The executor will then need to manage the estate and all the assets. Managing the estate will include paying off debts and then distributing the estate to the beneficiaries according to the Will.
What are the requirements for a probate application?
The first step is deciding who can apply for probate. A common misconception is that any family member of the deceased can apply. In fact the only people who can apply for probate is the executor named in the Will. A nominated substitute executor can also apply. However a substitute can only apply if the criteria for their appointment is met. For example if the appointment of a substitute is because the primary executor is deceased a copy of the death certificate or the case number for the primary executors probate needs to be provided to the court.
Before an application for probate is made the executor will need to publish a probate notice and wait 14 days. After 14 days the executor can then make an application for probate.
Generally the required documents when making an application include but are not limited to:
- Original Will and any codicils;
- Death certificate;
- Inventory of Assets (description and particulars of assets of the deceased);
- A summons for probate (Form 112);
- The affidavit of the executor/s (Form 118); and
- Two draft copies of the Grant of probate ( Form 111).
Do you need probate?
There are some circumstances where probate may not be required. Generally if there is no real property in the estate the executor can contact the asset holder and check if probate is required. Some banks may transfer accounts to the care of an executor without a grant of probate. We always recommend it is best to check first before deciding whether or not to apply for probate. Probate should be applied for within 6 months of the death of the deceased. If probate is applied for 6 months after the death of the deceased the court will require an explanation in affidavit form for the reason for the delay.
Probate is never an easy task, the information provided above only contains a very basic overview of the process. Choosing an executor should be a well thought out decision. Your executor should be someone who is trustworthy and you feel will be capable of managing your estate in your best interests. If you have any questions about drafting a Will or require assistance with getting a grant of probate please contact us on 02 9687 8885 and our team of lawyers will be happy to assist.