Losing a loved one is one of the most difficult events of our lives. Dealing with their estate should not add further stress to an already challenging time. A thorough understanding of the processes involved in finalising and distributing a deceased estate, according to the Will of the person who has died, can help to minimise that stress.
In this article we examine the Probate process: an important legal process that the executor of an estate must, in most cases follow, to be able to effectively manage any assets or liabilities that constitute the estate left behind by a loved one that has passed.
Prior to deconstructing the Probate process, it is essential to understand what it is, when it is required and how to best prepare yourself when commencing this course of action.
What is Probate?
Simply put, a Probate of a Will is a legal process in which the Supreme Court certifies the following:
- The named person has died (the deceased);
- The deceased left a valid Will; and
- The executor(s) named in the Will have the authority to access, manage and finalise the deceased’s estate.
Once the Court has granted Probate the executor can commence the administration and finalisation of the estate. The executor should attend to this as rapidly as reasonably possible after the Grant of Probate. If there are inordinate delays, the executor may face an application to the Supreme Court by dissatisfied beneficiaries.
When is Probate required?
It is not the Grant of Probate that passes the estate to the executor – that happens at the moment of death. However, the Probate provides absolute “proof” to anyone dealing with the executor that the executor is in fact entitled to deal with the estate assets. In many situations executors will need to obtain a Grant of Probate before they can access and manage any property, assets and liabilities that belong to the deceased individual.
Situations a Grant of Probate are likely to be required include:
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- Banks to grant access to a deceased person’s assets, particularly when bank account balances exceed approximately $50,000;
- Share registries to grant access to a deceased person’s assets, particularly shareholdings exceeding $15,000 of value;
- Aged care facilities regarding the refund of an Accommodation Bond (RAD);
- Real estate agents to enable title of transfer, or for tenants in common;
- Superannuation to allow access to super payable to the estate;
- Australian Taxation Office to enable liaison for tax matters; and
- Any financial institutions with regards to liabilities such as personal loans, mortgages or asset finance.
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In some cases, where an estate is small, a Grant of Probate may not be required. In these situations, certified copies of the Death Certificate and Will suffice, however these circumstances are determined by the type of assets, their value and the policies of the institutions holding or managing them.
How do I apply for Probate in NSW?
Since late 2023, Applications for Probate are submitted online via the Supreme Court’s new Probate Platform (will insert link), you simply need to create an NSW Online Registry Account (will insert link) to access this platform.
The new Probate platform is intended to assist with the processing of uncontested Probate quickly and efficiently. Whilst the old Probate system required hard copies and original documents to be submitted for filing and processing, this new system aims to simplify the process by enabling easier entry of necessary information about the deceased and their estate and simultaneously achieve faster outcomes whilst maintaining the integrity and legality around the traditional requirements of Probate via the uploading of scanned documents and the filing of original documents with the court.
Who applies for a Grant of Probate in NSW?
The individual who is named as the Executor in the Will applies for a Grant of Probate (based on the assumption that there are no conditions in the Will that prevent them from being the Executor).
An executor may apply directly to the Court without engaging a solicitor. However, it is a difficult and confusing process, so many executors prefer to leave it to a solicitor to manage the process on their behalf.
Did you know?
Every State and Territory in Australia has its own process for the Probate application process. For example, in Victoria, NSW and SA the application is submitted via an online platform, whilst other states require physical lodgement. Therefore, it is essential to know which State or Territory to apply for Probate in, plus what the requirements are within that jurisdiction.
How long does Probate take in NSW?
The amount of time a Grant of Probate takes is determined by a myriad of factors including court processing times, accuracy of the application, disputes and other delays.
Whilst traditionally the typical timeframe for Probate in NSW has revolved around the 3–4 week mark for initial processing and 2 -3 subsequent months to complete, with the entire process including administration and finalisation of the estate taking 6 months to a year or more, the introduction of the new Probate portal has significantly altered this time frame.
The introduction of this new system and its associated teething issues, compounded with the Christmas closure period and general backlog has seen current turnaround times exceed approximately 12 weeks for the initial processing period.
Compounding this delay are requisitions (which are requests for more information or corrections for already submitted Probate applications), which inevitably add further weeks and months to the timeframe for achieving a Grant of Probate.
This fusion of factors unfortunately has the consequence of amplifying an already stressful situation of losing a loved one and not being able to achieve the closure needed around an estate to symbolically (and materially) move on.
How to ensure a smoother Probate process
Probate applications are complex, but many of the common issues that cause delays can be avoided with legal guidance.
A proactive approach to estate planning will eliminate any Probate problems that may potentially arise at a later date, helping to ensure the application process is as straightforward and stress-free as possible:
Some of the common causes of Probate delays or issues, and their resolutions, are:
- Incomplete applications including missing personal or identification details. A review by a lawyer can ensure all relevant details have been provided.
- Disputes among beneficiaries regarding distribution of the estate. Dispute mediation by a legal professional can assist with resolution of this issue.
- Difficulty locating international assets or beneficiaries, particularly if outside Australia. Legal guidance can assist when navigating global legal requirements.
- Invalid Will due to factors such unclear language, undue influence or more. Ensure a lawyer drafts and reviews the Will to prevent such claims.
- Debt or insolvency issues preventing estate distribution. Legal guidance can assist with insolvency procedures to ensure efficient estate distribution.
- Complicated family situations such as blended or estranged relatives. Legal guidance can navigate through these dynamics to prevent conflict and achieve a smooth Probate process.
- Tax and compliance issues delaying Probate. Legal guidance can ensure all legal and tax obligations are fulfilled avoiding delays and penalties.
- Multiple or missing Wills causing challenges and delays. A lawyer can ensure the correct Will is validated and can ensure the estate is distributed in accordance with the law.
Despite the more streamlined Probate portal, the task of managing a loved one’s estate combined with the complexities of estate planning at a time of stress is no easy feat.
To ensure a smooth Probate process and minimise the chance of a maximum turnaround time for the grant of a Probate, it is advisable to seek legal advice to not only help ensure a more efficient Probate process, but to also ensure that the estate is managed according to the deceased’s wishes.
This summary has dealt with the procedure for obtaining a Grant of Probate of a Will. If the deceased person has not left a Will, and has died “intestate”, the very different, and even more complicated process of obtaining Letters of Administration must be followed. But that is a story for another day.
If you need any assistance, please contact the team at Antcliffe Scott.