Probate & Administration

When a person passes away, and unless they have a very small and simple estate, it is necessary to obtain a court order appointing a person to have authority to manage their estate.

Where the person had a valid Will when they died, we talk about applying for “probate” of their Will.  This is a formal legal process in which we apply to the Supreme Court of New South Wales, asking for official recognition that the person has died, that the Will that we have submitted is valid, that this Will is truly the last Will of the person, and that the executor(s) named in the Will are now authorised to deal with the deceased person’s property.

Where a person dies without a valid Will, then a family member will usually apply to the court to be appointed as an “administrator” of that person’s estate.  We describe this as seeking “letters of administration”.

Seeking probate or letters of administration can be a complicated process. Affidavits usually need to be prepared and evidence put forth to satisfy the court of what is being asked. The rules are very rigid and strictly followed.  For this reason most people seek the help of lawyers to guide them through this process.

There is a schedule of fixed costs which can be charged by lawyers to obtain probate or letters of administration.  For this reason, using a competent firm like Atkinson Vinden to help with obtaining probate is a wise decision as we will be no more expensive than a smaller or less experienced firm.

Each year we successfully apply for probate and then administer over 50 estates. Those estates can be very small, in the tens of thousands of dollars, through to very large estates worth tens of millions of dollars.  We are able to liaise with family members to ensure that all of the important documents are collated to assist in the court application.

Once we have obtained probate or letters of administration, we then usually assist our clients with calling in all of the assets of the estate and then assisting with the distribution of monies to family members according to the Will. Often this is seen as preferable to a family member handling these things, because there is a sense that a professional and neutral third party removes any suspicion of anything untoward being done.

Let us take the worry out of the legal side of a family member’s passing.  We can:

  • obtain Probate of the Will
  • administer the Estate, including calling in all of the assets and identifying and paying all of the liabilities
  • distribute the Estate to beneficiaries

Give our estate planning team a call on 9411 4466 or email@avlawyers.com.au

  • Where there is a Will

    When a person leaves a Will it is usually necessary to obtain a Grant of Probate.  This is done by filing an application with the Probate Registry of the Supreme Court together with an affidavit by the executors setting out details, including details of the liabilities and assets of the deceased and the beneficiaries under the Will.

    The Grant of Probate gives the executors authority to deal with the assets of the deceased.

  • Where there is No Will

    Where there is no Will, generally it will be necessary for a person (usually the next of kin or a close relative, or another beneficiary) to obtain a Grant of Letters of Administration from the Court.  The process for this is similar to that of obtaining a Grant of Probate, although sometimes slightly more complex.

  • Administration of Estate

    After obtaining a Grant of Probate or Letters of Administration, the executors or administrators (referred to as the legal personal representatives) must ensure that the financial affairs of the deceased are finalised and the estate distributed.  This will involve ensuring that any outstanding income tax returns are lodged and tax paid, all liabilities paid, collecting assets and either distributing the assets, or realising the assets and distributing the proceeds, in accordance with the Will, or to those entitled by law where there is no Will (that is on intestacy).

  • A Grant of Probate or Adminstration is not always Necessary

    If all the assets of the deceased are owned jointly with another person (for example, with the spouse of the deceased) or there is no real estate owned, and the value of assets other than jointly owned assets is very low, it might not be necessary to obtain a Grant of Probate.

    At Atkinson Vinden we will assist in the application for a Grant of Probate or Letters of Administration in an estate where this is necessary, and in the administration of a deceased estate.