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Probate NSW

What is a ‘Probate of a Will’ in NSW?

Probate of a Will refers to a court order issued by the Supreme Court of New South Wales that appoints the person who is named executor to administer the estate according to the Will of the deceased.

Anyone who is nominated as an executor in a Will should obtain advice regarding whether a grant of Probate is necessary. If the deceased owns real property in his or her sole name, then a grant of Probate will usually be required.  Many banks also require a grant of Probate, particularly where the deceased has accounts totaling more than $50,000.

In these circumstances, the assets of the deceased cannot be transferred to a beneficiary until the Court has made a grant of Probate.

If a grant of Probate is necessary you should make you application to the Supreme Court of NSW within six (6) months from the date of death of the Testator. The Court may grant an extension of this time period in certain circumstances. 

But what if the person died without an existing Will? You may have to apply for Letters of Administration instead of a Probate. For more information on this legal process, you should call WillClaim on (02) 8875 7792

Why is a grant of Probate important in Will disputes?

A grant of Probate or Letters of Administration is required before any application to contest or challenge a Will can be made.

If you are a named beneficiary of a Will, or if you believe that you are left out in a Will, you should contest or challenge a claim before the executor distributes the estate. You may find it difficult to recover your claim if the estate has already been distributed. Once you have put the estate on notice of your claim you receive a degree of protection in the event that the executor subsequently distributes the estate.

What Can You Do If a Person Died without a Will (Intestacy)?

An intestate is a person who dies without a Will, or who dies with a Will that does not dispose effectively of all of his or her property. Roughly half of Australians die without having made a Will.

The Succession Act 2006 (NSW) sets out the hierarchy of people who are entitled to apply to administer the estate if there is no Will. The Act also sets out who is entitled to be a beneficiary. If the deceased has a spouse or domestic partner and no children from another relationship, then the spouse or partner is entitled to the whole estate. If the deceased has children (who are not the spouse or partner’s children), the estate is divided between the spouse or partner and the children. In the absence of a partner or children, the estate defaults to parents, siblings, grandparents and then aunts and uncles.

If a Will is found by a court to be invalid, the estate will proceed to be dealt with as an intestate estate.

It is still possible to contest an intestate estate if you are not a statutory beneficiary, or if you receive inadequate provision under the rules.

How to Get a Copy of a Will in NSW?

If you are a named executor, or a beneficiary, or a member of the immediate family of the deceased, you are entitled to obtain a copy of a deceased person’s Will. If you are an eligible person to make a family provision claim, then you are also entitled to receive a copy.

The Succession Act sets out the full list of people who are entitled to obtain a copy of a Will of a deceased person. If you are not sure of your rights, please contact WillClaim on (02) 8875 7792 and we will provide you with advice.

Do you need help? Call WillClaim and speak to a solicitor today.