What is a grant of probate?

An estate’s executor must collect the deceased’s assets, pay their debts, then distribute the assets to the beneficiaries. A grant of probate authorises the executor to follow the provisions of the Will in managing a deceased estate.

Once the executor gives the grant of probate to those holding the estate’s assets (asset holder), the asset holder must transfer the assets to the executor/beneficiaries.

The Supreme Court of New South Wales determines uncontested applications for grants of probate (known as grants in common form).

The Court can only grant probate if the deceased’s assets are located in New South Wales. If they are in more than one state or country the executor may have to apply for a grant in each state or country (however, if they are in other Australian states and in certain countries the executor may only require a reseal of the NSW grant).

Must I obtain a grant of probate?

Not every deceased estate has to obtain probate. The type, size and value of the assets may be such that an asset holder may be willing to release assets without the need to obtain probate.

Is there a difference between joint tenants and tenants-in-common?

When the deceased’s assets were owned as joint tenants, probate is not required for that property and it automatically passes to the remaining joint tenant(s).

Probate is required if the deceased owned real estate solely in their name or as a tenant in common with a surviving beneficiary.

A title search shows if the ownership of real estate was as joint tenants or tenants in common. The NSW Land Registry Services website has a list of information brokers from whom a title search can be ordered.

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 should ask the asset holders if they will transfer the assets without a grant of probate. They may be willing to do so if the executor gives them a certified copy of the death certificate, the Will, declarations signed by the beneficiary(s) of their entitlement, and/or an indemnity in case there is subsequently a claim on the estate.

Superannuation is not considered part of the estate. Depending on the terms of the policy, neither are the proceeds of life insurance. However, a superannuation or life insurance trustee may require a copy of probate before they will determine who is entitled to superannuation or insurance proceeds.

Is there a time limit for lodging an application?

If an executor files an application for probate after 6 months following the deceased’s death, the court requires them to file an Affidavit of Delay giving reasons for the delay.

Who can apply?

The Will-maker (testator) should nominate an executor in the Will. If no executor is nominated, probate cannot be obtained but a beneficiary can apply to the Supreme Court of NSW for Letters of Administration with the Will Annexed.

The testator may nominate an executor as their first choice (the instituted executor) and an alternate executor (the substitute executor) in case the instituted executor predeceases them or is unable or unwilling to act.

What is the effect of marriage or divorce after making a Will?

Marrying or remarrying after making a Will may revoke the Will. However, a Will which says it was made “in contemplation of marriage” is not normally revoked by a subsequent marriage.

Divorce also normally revokes the former spouse’s entitlement under the Will and their rights to be the executor.

Can an executor renounce probate or resign?

An executor appointed under a Will who is unwilling to take on the role can renounce probate. If there is more than one instituted executor, the remaining executor(s) can apply. If there are none, a substitute executor(s) may apply.

An executor’s renunciation of probate is included in the notice of intention to apply for probate (published on the online registry).

Executors cannot renounce probate once a grant has been made. Only a Court order revoking the grant of probate can remove an executor after a grant is made .

An executor may delegate their executorial duties only to the NSW Trustee and Guardian or a trustee company.

Where an executor does not apply for probate but does not formally renounce probate, a notice must be served on them requiring them to apply for probate. If they do not then:-

1. the other executor may apply; or
2. if there is no other executor, a beneficiary may apply for Letters of Administration with the Will Annexed.

Does the original Will have to be filed?

The original Will (and any codicils) must be filed with the probate application and will be retained by the Court.

If you can only find a copy of the Will, or if it is unsigned, or has not been properly witnessed, it may still be possible to apply for probate.

What if the Will is unsigned or undated?

If the Will is undated, you must provide evidence as to when it was executed by filing an affidavit of attesting witness.

An affidavit of attesting witness is required if there is any doubt as to whether a Will was properly executed and witnessed. Affidavit evidence may also be required if it appears that other documents were attached to the Will and subsequently removed, or if the Will was torn or defaced after being executed.

What if there is a Codicil?

If the testator has made a codicil amending a previously executed Will, the application will be for probate of the Will and the codicil.

Can an executor apply for probate with a copy of a Will?

If the original Will cannot be found but there is a copy which is believed to be the deceased’s last Will then the executor named in the copy can apply for probate by filing the copy of the Will with the probate application.

The affidavit of executor must explain where the copy was found and set out all the searches made for the original or a later Will. It must also say who would be entitled if there was no Will (called “intestacy”).

A grant of probate on a copy of a Will is a limited grant until the original Will is found and an application has been made for a grant of probate of the original Will .

Can an executor apply for probate of an informal Will?

A Will must be signed by the testator and witnessed by two witnesses who both saw the testator sign. Nevertheless the Court may grant probate for a Will that does not meet these requirements if it is satisfied that the deceased intended the document to be their Will.

Caveats and contested proceedings

A person with an interest in a deceased estate can file a caveat preventing the court from issuing a grant. A caveat is served on known or potential applicants for a grant of probate or administration and remains in force for 6 months.

An executor wanting to apply for a grant of probate can apply for the court to remove the caveat on the grounds that the caveator has no standing or that there is no real dispute as to a Will’s validity.

If there is doubt as to a Will’s validity, contested proceedings can be commenced by a statement of claim for a judge to determine whether probate should be granted in solemn form.

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