Probate and Letters of Administration
A Grant of Probate is a legal document issued by the Supreme Court of New South Wales after an individual passes away. It legally validates the deceased individual’s Will and appoints an Executor to administer the estate which includes the paying of debts and distribution of assets to beneficiaries.
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When do you need a Grant of Probate?
A Grant of Probate is required where assets are:
- Over a certain amount
- Solely owned
These amounts, often referred to as thresholds, are prescribed by the banks and institutions holding the assets. For example a bank or share platform may require a probate for assets above $50,000.00. Checking with each institution is recommended as their requirements differ and can change.
In NSW, a Grant of Probate or Letters of Administration are required to transfer or sell real property owned solely by the deceased individual.
When don’t you need a Grant Probate?
A Grant of Probate is not required where assets are:
- Below a certain amount
- The assets are jointly owned
In the event of ‘low value assets’ there may not be a need for a Grant of Probate. Alternative documentation may be required and each bank or institution will explain their requirements.
When assets of the deceased individual were owned ‘jointly’, the assets pass directly to the surviving partner. An example would be a couple with a joint bank account, where each individual is a ‘joint’ owner of the account. The same rule applies to jointly owned material assets, such as motor vehicles.
Are there time limits for a Grant of Probate?
The Supreme Court requires that applications for a Grant of Probate are made within 6 months of the death of the individual. An affidavit (written statement of fact) may be required explaining the delay.
When won’t a probate be granted?
In the event of an individual passing without a Will (‘intestate’), Probate is replaced by ‘Letters of Administration.’ Although similar to a Grant of Probate there is increased complexity in the process of application.
Do I really need a Grant of Probate?
With all legal matters where an option is present, it depends on a combination of individual circumstances and carefully considered legal advice. A Grant of Probate will legalise the Will and may reduce the grounds for the Will to be contested (although not eliminated entirely). Our solicitors will help you clearly understand the implications of each option and advise on the appropriate course of action while keeping your best interests in mind.
What is Letters of Administration?
Letters of Administration may be applied for by a nominated beneficiary if the deceased individual had a valid Will and the following circumstances present:
- The executor was not named
- The executor died before the deceased
- The executor died before applying for Probate
- The executor has renounced probate
- The executor is overseas and has requested another beneficiary apply to administer the estate
Applying for Letters of Administration
To apply for Letters of Administration, you must publish a ‘Notice of intended application’. The notice can be published online with the NSW Online Registry website and there is a fee for lodging the notice. Arrangements can be made to pay in person or by post at the Supreme Court Registry. Once published a 14 day waiting period applies before Letters of Administration can be applied for.
Where Letters of Administration have been granted with the Will annexed, the estate must be distributed as set out by the deceased individual in the Will. Rules of ‘intestacy’ do not apply.
Collecting and Distributing Funds
Following a Grant of Probate or Letters of Administration, the executor (or administrator) is legally authorised to deal with the estate of the deceased individual. The executor is required to act in good faith and due diligence and to execute the will in line with instructions of the deceased.
The primary actions of the executor will involve collecting the assets and paying any outstanding debts. Legal advice should be obtained prior to paying any debts as there are considerations to take into account when dealing with various types of debt. Care to understand the deceased individual’s tax position should also be taken. Your solicitor may suggest publishing a ‘Notice of Intended Distribution’ as a means to offer protection from personal liability in the event futures debt claims arise.
Once all debts have been paid, the estate will be distributed amongst the beneficiaries. Deadlines for distribution of a legacy (gift of money) exist and care should be taken to have these met.
The passing of a loved one is often a very stressful experience. There are many time consuming and stressful legal tasks to complete. Our solicitors will take the time to understand your situation and provide you with guidance and easy to understand explanations of the process.
Enquire with Joseph today:
Joseph Buda
(OAM) - LAWYER - SENIOR CONSULTANT
Joe is the original founder of the firm. He commenced his legal career assisting new immigrants providing them with legal advice in various areas of Law.
His knowledge and experience is of benefit to his clients, as he can generally see and determine which path the matter follow. Joe is always ready to provide his knowledge and support to his sons and all staff members in matters relating to: