We are experienced in working with Wills and Estates and can ensure your peace of mind with comprehensive legal advice and guidance.
Probate and Letters of administration
When a loved one passes away leaving a significant estate, an application must generally be made to the Supreme Court of NSW before the holders of the estate assets will release them to the executor to pay the debts and distribute the balance to the beneficiaries.
If the deceased made a Will appointing you as the executor or as a joint executor, you must apply for a grant of probate after which you may pay the debts and distribute the balance according to the Will.
If the deceased left no Will (i.e. they died intestate), their partner, spouse or next of kin must obtain a grant of letters of administration before they can pay the debts and distribute the balance in the shares set out in the intestacy rules in the Succession Act.
Need help administering a deceased estate?
We can help ease your stress by:
- advising organisations including asset holders of the person’s passing;
- obtaining a grant of probate/letters of administration;
- providing asset holders with copies of the Will, death certificate, probate, executor’s identification and other documents and engrossing asset holders’ forms;
- gathering in the estate assets, paying debts, and distributing the balance in accordance with the Will or the intestacy rules.
Probate in NSW
What is a grant of probate?
An estate’s executor/s must collect the deceased’s assets, pay their debts, then distribute the assets to the beneficiaries. A grant of probate is a legal document that authorises an executor to follow the provisions of the Will in managing a deceased estate.
Once the executor gives the grant of probate to the estate’s asset holders (e.g. banks, share registries, retirement villages holding a bond), they must transfer the assets to the executor (or to beneficiaries named in the will).
The Supreme Court of New South Wales (the Court) determines uncontested applications for grants of probate.
The Court can grant probate only for assets in New South Wales. A grant of probate may have to be applied for in respect of assets located in another state or country. However, assets held in other Australian states and in some countries may require only a reseal of the NSW grant.
Must I obtain a grant of probate?
Not every deceased estate has to obtain probate. An asset holder may release assets (e.g. if they are of minimal value) without the need to obtain probate.
What’s the difference between joint tenants and tenants-in-common?
Where the deceased’s ownership was joint (i.e. where the co-owners [joint tenants] did not own distinct shares of the property), the property automatically passes to the surviving joint tenant/s. Assets held by the deceased as a joint tenant with a surviving beneficiary do not require a grant of probate.
Probate is required if the deceased owned real estate their sole name or as a tenant in common (i.e. as a distinct share) with a surviving beneficiary/s. A title search shows if the ownership of real estate is as joint tenants or tenants in common.
What are the asset holder’s requirements to release assets?
Asset holders differ in their requirements for releasing assets. If there is no real estate, the executor can ask the asset holders if they will transfer the assets without a grant of probate. They may agree to if the executor gives them documents such as:
- a certified copy of the death certificate; and
- a certified copy of the will;
- a declaration by the beneficiary/s as to their entitlement, and/or;
- an indemnity (in case there is a later claim on the estate).
Depending on the terms of the policy, proceeds of a life insurance policy may not be part of the estate. Superannuation is not part of the estate. A superannuation fund or life insurer may nonetheless require probate before they will determine who is entitled to superannuation or insurance proceeds.
What’s the time frame for lodging an application?
If an executor files an application for probate over 6 months after the death of the deceased, the Court requires an explanation for the delay.
Who can apply?
Probate can only be applied for if the will-maker (testator) has nominated an executor/s in the will. In that event, a beneficiary named in the will can apply for Letters of Administration with the will annexed.
A testator may nominate an executor as their first choice (the instituted executor/s) and an alternate executor (the substitute executor/s) if the instituted executor predeceases them or is unable or unwilling to act.
If there is more than one executor, all the surviving executors apply for a grant of probate.
Marriage or divorce after executing a will
If a testator marries or remarries after making a Will, it may revoke the Will. However, if a will says it was made “in contemplation of marriage”, it would not normally be revoked by a subsequent marriage.
Divorce also normally revokes the former spouse’s entitlement under the will and their rights to be the executor.
Renouncing or resigning as executor
If an executor appointed under a will is unwilling to take on the role, they can renounce probate. In that event, the remaining executor(s) can apply.
An executor/s cannot renounce probate after a grant has been made but they can be removed by a Court order revoking the grant.
An executor may delegate their executorial duties only to the NSW Trustee and Guardian or a trustee company.
Applying for Probate on a copy of a will
If the original will cannot be found but there is a copy believed to be the deceased’s last will, the executor named in the copy of the will may apply for probate. In that event, the copy of the will is filed with the probate application.
Searches to locate the original will
The executor named in the copy must undertake extensive searches for and make enquiries about the original (or a later) will which are set out in the application. In certain circumstances, evidence indicating the deceased’s intention not to revoke the will may be required.
Those entitled under intestacy
The applicant lists those who would be entitled if there was no will .
A limited grant
A grant of probate on a copy of a will is limited until the original will is found and an application is made for a grant of probate for the original will.
Applying for probate of an informal will
A will must be signed by the testator and two witnesses who saw the testator sign. Nevertheless the Court may grant probate if a will fails to meet these requirements if it is satisfied that the deceased intended it to be their will.
Caveats and contested proceedings
A person with an interest in a deceased estate can file a caveat lasting for 6 months which prevents the Court from issuing a grant of probate.
An applicant for a grant of probate who applies for removal of the caveat can assert that the caveator has no standing or there is no real dispute as to the will’s validity.
Reseal of Probate
What is a reseal of probate?
A reseal of probate is when you need to apply to another state’s Supreme Court so that a Will that has a grant of probate in one state is recognised in another state. Once a reseal of probate has been granted, the executor can also deal with the estate assets located in a state other than where the original grant of probate was issued.
Obtaining a Reseal of Probate in NSW
A grant of probate is state-based and probate laws can differ between states and countries. A deceased’s assets, such as shares or investment properties, may be in various locations. Assets not located in NSW cannot be dealt with under a NSW grant of probate.
Rather than requiring a fresh application for a grant of probate in NSW, you can apply to the Supreme Court of NSW asking that it recognise the original grant by resealing the original grant with the seal of the Supreme Court of NSW.
Not all foreign grants can be re-sealed. The Supreme Court of NSW will only recognise grants made in one of ‘Her Majesty’s Dominions’ (being certain Commonwealth countries and other Australian States and Territories. Probate granted in Western Australia , Northern Territory, South Australia, Queensland, Victoria , Australian Capital Territory or Tasmania can be resealed with the seal of the Supreme Court of NSW.
Why do I need to obtain a Reseal?
The Grant of Probate is proof that the named executor or administrator is authorised to deal with the estate’s assets. The asset holder (such as a bank, nursing home, share registry or NSW Land Registry Services) may require the grant before releasing the asset. If the Grant has been obtained outside NSW, the asset holder may require the Supreme Court to approve the Grant.
What is the effect of a Reseal?
A re-sealed grant of probate or grant of administration made in another state or country has the same effect and operation in NSW. A resealed foreign grant must be accepted as if it had been made by the Supreme Court of NSW. The executor can then gain access to and distribute to beneficiaries the deceased’s assets located in NSW.
Must I obtain a Reseal?
Depending on the type, size and value of the asset(s) located in NSW, you may be able to avoid having to obtain a reseal in NSW by signing a declaration and/or indemnity as required by the asset holder. Each asset holder will have their own requirements. You should provide them with proof of the original grant and death certificate and ask them what their requirements are to release the assets. Shares may be released or transferred without the need for the grant to be resealed in NSW if it has been obtained in Australia and a section 1071B statement (which may be downloaded from the share registry) is completed.
How can I obtain a Reseal in NSW?
An application for Reseal of probate must be made using the Court form accompanied by the information required by the legislation and rules of court. The process involves filing Court documents and advertising requirements.
Letters of Administration in NSW
The Supreme Court of NSW (The Court) issues a Letter of Administration to legally appoint an applicant as the administrator of a deceased estate. This type of grant is issued where the appointed executor is unavailable to take responsibility for the estate or when the deceased died partially or wholly intestate (i.e. having no will).
What is a Letter of Administration?
The Court can issue Letters of Administration for the estates of people who resided in or owned property in New South Wales. A Letter of Administration is most commonly granted when someone dies intestate. The grant authorises the applicant to assume responsibility for the assets and liabilities of the deceased estate. Asset holders such as government departments and banks will generally release assets to the administrator only after sighting a Letter of Administration.
Where the deceased has a valid will appointing an executor, a Letter of Administration is generally not required. However, when the nominated executors are unable or unwilling to act in the role, an application for a Letter of Administration with the Will Annexed must be made to appoint an administrator.
Who is eligible to apply for a Letter of Administration?
The Probate and Administration Act 1898 lists the categories people eligible to apply. The Court will issue a Letter of Administration to a competent adult who is a potential beneficiary or creditor of the estate (usually a close relative of the deceased such as a spouse or child).
A person living outside Australia cannot apply for a Letter of Administration. If the only eligible beneficiary lives overseas, they must appoint a solicitor to apply for a Letter of Administration in their stead.
If there are several eligible parties, they can either apply jointly, or one beneficiary can apply with the endorsement (by written affidavit) of any other beneficiaries. If the parties cannot agree who should apply for the grant, the Court will assess the merits of the competing claims. In this scenario, the Court generally makes the grant to the deceased’s closest living relative (e.g. their spouse or de facto partner or an adult child).
If assessment of the competing claims is likely to delay administration of the estate, the Court can appoint a special administrator temporarily pending the choice of an actual administrator. A special administrator is not a replacement for an administrator and has limited powers over the estate.
If no relative is willing to apply, the court can appoint the Trustee & Guardian, or accept an application from another interested party (e.g. an estate creditor).
What are an Administrator’s Duties?
The administrator is authorised to manage and protect the deceased estate according to either:
- the deceased’s will; or
- if the deceased died intestate, according to the laws of intestacy in NSW.
The administrator is responsible for collecting together and valuing the estate’s assets and discharging the estate’s debts. They lodge a final tax return for the deceased and establishes any discretionary trusts according to the will. They are responsible for protecting the estate (e.g. defending it from Court challenges).
How long will an application take to process?
An application may be filed with the Court up to six months after the deceased’s death. A late application may be accepted if:
- the Court determines that there is a reasonable excuse for the delay, and
- the parties agree to the appointment of the administrator.
The administration of the estate is usually completed within a year of the date of death. However, complexities in the administration, or unreasonable delay by the administrator, may cause delays. If the Court considers that the delay is unreasonable, it may replace the administrator.
An application for a Letter of Administration may take up to 4 months to process depending on how many cases the Court has when the application is filed.
Contact us for advice and assistance in applying for a Letter of Administration.
Superannuation and Estate Administration
For many Australians, their super is one of their largest cash assets. Administration of an estate may require superannuation to be dealt with.
How do I give my superannuation away when I die?
Superannuation does not normally form part of your estate and can’t be included in your Will. It usually goes directly to the person that you nominate to receive the benefit from your superannuation.
Your superannuation isn’t considered one of your assets and cannot be included in your estate and or left to someone in your Will. If you erroneously include it in your Will it can cause problems.
Why can’t I leave Superannuation in my Will?
Due to the way in which Superannuation schemes are set up, the money in your Superannuation Account is not owned by you personally. It is owned and managed by the trustee of your Superannuation Fund who holds it on Trust on your behalf. Only the trustee can distribute the money in your account to your beneficiaries, but not as part of your Will.
How can I bequeath my superannuation?
Superannuation does not automatically form part of your Estate. You should ensure that you contact your Super Fund with information about your beneficiary or Estate.
What is a death benefit nomination?
A death benefit nomination is a non-binding nomination made by you in which you express your wishes to the trustee of your superannuation fund about who you would like to receive your death benefit on your death.
A binding death benefit nomination is a binding nomination made by you directing the trustee of your superannuation fund who to pay your death benefit to on your death.
A traditional binding death benefit nomination lapse after three years, so you need to update it before it expires. However some funds now allow for non-lapsing binding nominations which need not be renewed. A binding death benefit nomination specifies that the trustee must distribute superannuation in your account to the beneficiaries you nominate.
How do I ensure that my super is distributed according to my wishes?
Notify your superannuation fund with your binding nomination and insert a superannuation will clause in your Will. In your Will you can stipulate who is to receive the benefits of your superannuation account. You nominate through your superannuation fund your legal representative as the beneficiary of your superannuation, who can then distribute it according to your Will. For this to work, your Will must include a superannuation clause and you must keep the binding nomination and the beneficiaries in your Will up to date.
A simpler option is to make a binding death benefit nomination with your superannuation fund and the money will be distributed to the named beneficiaries on your death.
You can only nominate certain types of people under a binding death benefit nomination. These include a spouse, a de facto, children (in some circumstances including step children), dependents, inter-dependents, and your estate.
How do I make a Binding Nomination with my super fund?
You nominate someone using your super fund’s death benefit nomination form or binding death benefit nomination form.
What happens if I don’t make a Binding Nomination?
If you don’t make a binding nomination or it has expired at the time of your death, the trustee of the super fund has the ultimate discretion about who will receive that benefit. They can either pay the money directly to your estate or decide which of your beneficiaries should receive it.
Treated unfairly in a Will or an intestate estate?
Have you been unfairly left out of the Will of a loved one or received nothing from an estate due to the rules of intestacy?
Have you received less than you feel you are entitled to in a Will?
If you are an eligible person, there are significant assets in the estate, and you have the requisite financial need, you may be entitled to claim against the estate.
We can represent you in filing an application to the Supreme Court of NSW for greater share of the estate.
Contesting a Will in NSW
When can a Will be contested?
A Will can be contested by anyone with an interest or relationship with the Will-maker (known as the ‘testator’).
Reasons for contesting a Will include:
- Will not legally binding;
- belief that Will has been tampered with;
- belief of existence of more recent Will;
- belief that Will does not make proper provision for claimant;
- belief that the testator lacked capacity;
- belief that the testator was tricked or unduly influenced into making the Will.
Undue influence is the use of persuasion, duress, pressure, force, coercion or fraudulent practices to the extent that the free will of the testator is destroyed.
Preventing Challenges to Wills
The testator telling loved ones what each is to receive in their Will helps to prevent challenges.
Courts rarely interfere with the testator’s wishes if the language in a Will is clear and precise. Ways in which you can reduce the chances of a challenge being successful include accurately describe gifts in your Will and expressing clear reasons for giving gifts.
Evidence that the Will was not tampered with reduces the likelihood of challenge succeeding.
Grounds for contesting a Will
Grounds for an objection or challenge to the validity of a Will include that the Will:
- does not accurately reflect the testator’s true intentions;
- is grossly unfair, excluding the deceased’s dependents or someone who should have been provided for; or
- is a forgery.
A belief that a Will is unfair will generally be insufficient grounds to challenge its validity. Contests to Wills may claim that the testator was not acting freely when they made their Will because they:
- acted under undue influence; or
- were the victim of fraud; or
- lacked the necessary capacity (testamentary capacity); or
- lacked the mental faculties necessary to write a valid Will.
Is there a time limit on contesting a Will?
If the testator passed away after 1 March 2009, you have 12 months from the date of death to raise a Will dispute claim.
However, in certain situations you may still be able to make a claim. Reasons the court accept in an application to set aside the time limit include:
- you did not know the person had died, or
- you received threats.
It’s very important to act quickly, as delay may jeopardise your claim.
If the date of death is uncertain, the court will determine a reasonable date.
When can a Will be contested?
You cannot challenge a Will simply because you do not like its contents, or because you are aggrieved: your grounds for challenging a Will must be recognised by law.
A testator’s the right to distribute their estate as they see fit is subject to legislation for the protection of those for whom the deceased had a ‘moral responsibility’ to provide. A Will can be challenged when a loved-one feels that the testator failed to meet this responsibility.
Can a Will be contested after Probate has been granted?
Whilst it’s easier to challenge a will before probate is granted, it is possible to mount a challenge after the grant of probate. You would have to satisfy the Court as to:
- your reasons for not challenging the Will earlier and
- the validity of the grounds for your challenge.
Who can challenge the validity of a Will?
Under the Succession Act 2006 (NSW), the two general classes of person have ‘standing’ (the necessary legal entitlement) to challenge a Will are:
- a person/s named in the Will (the beneficiary); and
- anyone who would stand to inherit if the Will was invalid. That is, persons who have been ‘disinherited’ or excluded from inheriting.
People entitled to contest a Will because they believe they have not been sufficiently provided for are:
- Former Spouses
- De Facto partners [partners who were living with the deceased when they passed away, in a manner similar to that of husband and wife (including same-sex relationships)];
- Children, including adult children and adopted children. Step children may contest the will if they were dependent on the testator;
- Grandchildren who were at least partially dependent on the deceased;
- Members of the deceased’s household who were at least partially dependent on the deceased. This includes those in ‘close personal relationships’ with the deceased;
- Parents, if dependent on the deceased.
A claimant must satisfy the Court that the Will does not make adequate provision for their maintenance, education or advancement in life.
Can part of a Will be challenged?
A Will can be challenged in whole or in part.
What does the Court consider when a Will is challenged?
The criteria the Court uses to assess claimants on a Will include:
- Is the Will ‘grossly unfair’?
- Should a claimant left out of a Will been provided for?
- Are the testator’s intentions clear?
- Did the testator have the mental capacity to understand what he/she was doing?
- Was a claimant partially or fully dependent on the deceased excluded from a Will?
Will I have to go to Court to contest a Will?
Where possible, Will disputes are resolved through a settlement agreement or mediation. This prevents the matter going to Court which reduces legal costs, brings earlier resolution and preserves family relationships.
Sometimes, however, going to Court cannot be avoided.
How much does it cost to contest a Will?
The total cost of a claim depends on how long it takes to resolve: either by negotiation or mediation, or after a long drawn out application to the Supreme Court. Each case is different.
What will I get if my challenge succeeds?
If you successfully contest the validity of a Will, the court will ‘set aside’ the Will. This has the legal effect of making it as though the Will never existed. None of the provisions will be applied and the estate will be distributed according to the second-to-last Will, if one exists. If no other Will exists or can be found, the laws of ‘intestate succession’ (i.e. the deceased died without having made a Will) mandate how an estate is to be divided. Provision is made for certain relatives and dependents, regardless of the wishes of the deceased.