Probate & Disputed Estates

What happens if a loved one passes away leaving a will?

Applying for a probate if there is a will available:

The legal procedures that cultivate how a deceased person’s estate and assets are distributed by an executor of a will to the beneficiaries is often perceived as a complex process. Upon the understanding of Wills and Estate Planning; The Probate Process demonstrates a substantial role when dealing with an application for the beneficiaries of the will to inherit the assets.

What is a Probate?

In NSW, when the testator of a will (that is, the person making the will) passes away, the executor of the will is required to obtain authorisation from The Supreme Court to manage the affairs/estate labelled within the will.

Once the executor is granted such authorisation, the executor will only have the power to receive the deceased assets, manage any outstanding debts and distribute the proceeds labelled in the will to the respective beneficiaries.

In many cases, a Grant of Probate is required from the Supreme Court prior to the executor having access to the estate, this is because the Court must be satisfied that the will is legally valid and that there are no issues with the understanding of the nature of the will by the testator, the parties are clearly verified, and the assets are identified.

When is a Probate required?

An executor of a will must follow the legal process to handle the estate of the testator through the provisions in the will.

There are three key situations when a Probate is necessary:

  • The deceased independently owned the estate when he or she passed away (this is different from where the deceased owned the estate by joint tenancy with someone else).
  • When some holders of assets need the executor to provide a grant of probate prior to releasing the assets of certain value. This includes the process of selling a property, shares or having access to bank funds.

Depending on the type, size and value of the assets located in New South Wales it may not be necessary to obtain a grant of probate in New South Wales. There is no statutory requirement to obtain probate in every case.  Some asset holders will often release smaller amounts without the need for probate to be obtained. Pursuant to these requirements, it is evident that a Grant of Probate is not necessary for minor matters, they generally occur when the matter has a high value in the estate as well as what the provisions the testator created within the will.

Applying for a Probate:

Almost all applications for probate require the same five important documents, The Court will determine whether any additional documents may be required to satisfy any other potential issues. These five documents are provided within the Uniform Civil Procedure Rules 2005 (NSW):

  • UCPR Form 11 – Summons for probate, administration, administration with the will annexed or resealed. Filling in the Summons of Probate consists of details such as; the case number, full name of deceased, date of death, suburb the deceased lived in, usual occupation of the deceased, the gross and net value of the estate and the name/s of the executor/s.
  • UCPR Form 118 – Affidavit of executor
  • UCPR Form 117 – Inventory of property
  • Death certificate
  • Will and any codicil; and UCPR Form 112 – draft Grant of Probate, letters of administration

Costs:

The main expense of this process is the Supreme Court application fee, which varies depending on the estates, an example would be a $560.00 fee for estates being worth less than $30,000.

Solicitor fees for applying for a Grant of Probate are predetermined by the Legal Profession Uniform Law regulation (depending on the actual size of the estate). It is determined pursuant to the formula below:

Disclosed value of assets or estate Costs payable
Not exceeding $30,000 $560
Plus $13.33 for each $1,000 up to $30,000
Exceeding $30,000 but not exceeding $150,000 $960
Plus $5.90 for each $1,000 in excess of $30,000
Exceeding $150,000 but not exceeding $1,000,000 $1,670
Plus $4.47 for each $1,000 in excess of $150,000
Exceeding $1,000,000 but not exceeding $3,000,000 $5,470
Plus $1.66 for each $1,000 in excess of $1,000,000
Exceeding $3,000,000 but not exceeding $5,000,000 $8,800
Plus $1.10 for each $1,000 in excess of $3,000,000
Exceeding $5,000,000 but not exceeding $10,000,000 $11,000
Plus $0.90 for each $1,000 in excess of $5,000,000
Exceeding $10,000,000 $15,500

Once the Court has granted a probate, the executor of the will can show the grant to organisations such as banks, land title offices and others, that hold any assets of the estate to have the monetary value or title transferred.

Managing the affairs of a loved one can be a difficult process. If you require any assistance with this process, we are here to help.

Go to the full page to view and submit the form.

The content of this article is intended to provide a general guide to the subject matter. Professional advice should be sought about your specific circumstances.

Omar Zobair

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