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Probate: Following the Will of your Loved One

Wills & Probate

As well as dealing with the dreadful loss and sorrow of losing a loved one when they pass away, there is also the burden of having to deal with that person’s property. In this step-by-step practical guide, estates lawyer Miranda Thompson explains what is involved.

What is a Grant of Probate?

A Grant of Probate (“probate”) is an order from the Supreme Court stating that the Will has been proved to be the last valid Will of the deceased. Obtaining probate allows an executor to collect and distribute the assets of the estate in accordance with the terms of the Will.

Who needs a Grant of Probate?

Very small and simple estates may not require probate, but in most instances it is required. If the deceased owned real estate in NSW the executor needs probate before the property can be transferred to a beneficiary or sold. Most banks and financial institutions require a probate before they will release funds to an executor and close accounts – they do not wish to run the risk of releasing funds to the wrong person! Share registries also need to see the probate before transferring or selling shares on behalf of a deceased estate.

An executor may not need probate if assets were jointly owned, typically the family home and joint bank accounts, or the funds in a bank account that are less than about $20,000.00.

Where to get help?

The easiest option is to ask a firm like Atkinson Vinden to help you with the process. Usually funds from the estate will pay all of the costs involved in a law firm acting, and so an executor need not fear the legal bills involved in seeking help from a solicitor. There is a set scale of costs for the process of applying for probate regardless of which firm acts, and so it is worth choosing a firm that you trust and which has the resources to handle the matter efficiently for you.

At AV we hold thousands of Wills in safe custody, all appropriately listed and easily located, but if you believe another solicitor may have prepared the will, we can contact that solicitor and arrange for the will to be provided to us.

What are the requirements for a Grant of Probate?

At the first meeting we request information from the executor about the deceased’s assets and liabilities, as well as needing a copy of the death certificate. The task of locating the assets and debts involves writing to asset holders and creditors and asking for details and requirements for release and we do this as part of our service.

Following the meeting, we advertise the executor’s intention to apply for probate on the Supreme Court website and we prepare the various court documents. The executor signs the documents and they are lodged at the Supreme Court. In most cases probate is granted within 6 to 8 weeks after lodgement.

The executor may then collect and distribute the assets of the estate. This is called Estate Administration, and is not as easy as it sounds! Some executors choose to take over from here, but in most instances we are asked to complete the process – something we are very happy to help with.