I have recently been involved in assisting the executor of an estate of a relative apply for probate. The executor of an estate is responsible for collecting the deceased’s assets, paying any debts and then distributing the assets to the beneficiaries.
A grant of probate authorises an executor (or executors) to manage the estate of a deceased person in accordance with the provisions of the deceased’s will.
The Supreme Court of New South Wales only has jurisdiction if the deceased left assets in New South Wales. If a deceased person owned assets in more than one state or country it may be necessary to apply for a grant in each place where assets were located.
An executor’s responsibilities include:
- finding the will
- arranging for disposal of the body
- getting the death certificate from the Registry of Births, Deaths and Marriages
- ascertaining the deceased’s assets and liabilities
- assessing the value of the deceased’s assets
- obtaining probate if required
- paying the deceased’s debts, income tax, duties and funeral expenses
- distributing the assets according to the terms of the will.
Probate cannot be granted if there is no will. If the will cannot be found in the deceased’s personal papers, they may have stored it with their bank, solicitor, or with a government authority like the NSW Trustee.
The funeral account can be paid from the deceased’s bank account before probate.
Obtaining a death certificate
In most cases the funeral director arranges registration of the death and will obtain the death certificate on your behalf.
The Registry of Births, Deaths and Marriages will only be able to provide a death certificate to the following
- next of kin listed on the certificate (spouse, parent or child of the deceased)
- funeral director (within two months of the registration)
- solicitor acting for the next of kin or estate
- executor of the estate.
if the death has been registered.
The Registry of Births deaths and Marriages require proof of your identity. Applications must be accompanied by at least three forms of ID.
If you are a next of kin named on the death certificate, i.e. spouse (married/defacto/same sex defacto), parent or child of the deceased, the death certificate can be issued to you.
If you are a relative not listed on the certificate, the certificate can be issued to you if the deceased had no living spouse, children or parents.
As well as three forms of your personal identification, you will need to provide:
- personal details of the deceased
- when and where the death occurred
- the full names of the deceased’s parents
- details of the deceased’s spouse.
If you are a relative that is not listed on the death certificate, there are extra requirements for obtaining a certificate.
The death certificate is required for:
- claiming insurance
- claiming superannuation
- drawing on the deceased’s bank account
- claiming for funeral benefits.
Importantly you should make photocopies and have each one certified as a true copy of the original by a lawyer, justice of the peace, or registrar of the local court.
The original death certificate is required for making an application for probate or for Letters of Administration.
Probate is an order from the Supreme Court stating that
- the will has been proved to be the last valid will of the deceased, and
- allowing an executor to collect and distribute the estate in accordance with the terms of the will.
Probate isn’t necessary if an estate is very small (less than $15,000) and uncomplicated, or when all assets are held as joint tenancies.
However some asset holders may require a grant of probate before they will release assets above a certain value.
Estate assets and liabilities
Locating an estates assets and debts usually involves contacting the asset-holders and creditors and asking for details of the assets and debts.
A bank, for example, will advise whether or not they require evidence of probate before releasing the deceased’s funds to you.
After obtaining the grant of probate, you should consider opening a bank or building society account in the name of the estate (to avoid confusion with your personal money) into which the released assets can be paid. Estate debts can be paid from this account once probate has been granted.
Applying for a grant of probate
You should seek professional advice to apply for a grant of probate the process usually involves.
Placing an advertisement on the Supreme Court Online Registry website at least 14 days before applying for probate announcing that probate is being applied for to give anyone who knows of another will, creditors, or others with an interest in the estate an opportunity to submit their claims.
A summons for probate and affidavit of executor filed with the Probate Office of the Supreme Court of NSW.
In the affidavit the executor swears that they will administer the estate according to the law and that they know of no reason why they should not be granted probate of the will the affidavit is filed with the following documents:
- the will
- the death certificate
- an inventory of the deceased’s assets and a list of their liabilities.
- A filing fee calculated depending on the value of the estate.
- A stamped self-addressed envelope.
Granting of probate
If there is no dispute about the will, you will be granted probate in common form. Essentially the Court confirms title to the estate property
Probate will not be granted if the court has decided that the will is invalid, and a court case may result. When a court has approved a disputed will, probate is granted in solemn form.
The role of an executor can take time and effort and the will-maker may specifically state that the executor should be paid for their work in the estate. Similarly the executor (including a Solicitor) may apply to the Supreme Court for a commission for the work undertaken.