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 or to whom the estate owes a debt, they must transfer the assets to the executor (or to beneficiaries named in the Will).

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, assets held in other Australian states and in certain countries 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. See the NSW Land Registry Services website for 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 probate before they will determine who is entitled to superannuation or insurance proceeds.

How long do I have to lodge 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 explanation for the delay in an Affidavit of 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 named in the Will can apply 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.

Marriage or divorce after execution of Will

Marrying or remarrying after making a Will may revoke the Will. However, a Will which says it was made “in contemplation of marriage” 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

An executor appointed under a Will who is unwilling to take on the role can renounce probate. If there are several instituted executors, the remaining executor(s) can apply. If there are none, the 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 has been 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. there is no other executor, a beneficiary may apply for letters of administration with the Will annexed.

The original Will

The original Will (and any codicils) must be filed with the probate application and will be retained by the Court. A Will or codicil must be in writing and signed by the testator and two witnesses and be verified that it is not a copy.

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.

Unsigned/undated Will

If the Will is undated, you must provide evidence as to when it was executed (e.g. an affidavit of attesting witness).

An affidavit of attesting witness is required if there is any doubt as to whether it 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.

Codicils

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

Applying for Probate on 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 filing the actual 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.

List those entitled under intestacy

The affidavit of executor must say who would be entitled if there was no Will (called “intestacy”).

A limited grant

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

Applying 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 who wants to apply for a grant of probate can apply for the court to remove the caveat if they believe 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.

Here to Help

Contact us for free no-obligation telephone advice about applying for a grant of probate.