Probates

Common Questions About Probate and Letters of Administration

What Is Probate? What is Letters of Administration?

Probate is the legal process of proving and registering a deceased person’s Will with the court. It confirms that the Will is valid and grants the executor the authority to manage and distribute the deceased’s estate according to their wishes. If the deceased did not leave a will, the process is slightly different and involves appointing an administrator to manage the estate under intestacy laws, this is called Letters of Administration.

Do All Estates Require Probate or Letters of Administration?

Not all estates require probate. Whether probate is necessary depends on the size and complexity of the estate and the assets involved. For example:

• Bank accounts: Many banks have thresholds (e.g., $50,000 or more) that require Probate or Letters of Administration before releasing funds.
• Real estate: If property is held solely in the deceased’s name, Probate or Letters of Administration is required to transfer ownership.
• Jointly owned assets: Assets owned jointly, such as bank accounts or real estate, typically pass directly to the surviving owner and may not require Probate or Letters of Administration.

How Do I Apply for Probate in NSW?

In NSW, the probate process involves several steps:

1. Locate the will: The executor must locate the original will and ensure it is submitted to the court.
2. Notify beneficiaries: Beneficiaries named in the will should be kept informed about the process.
3. File documents with the court: The executor submits the application, including the original will, death certificate, and supporting affidavits.
4. Advertise the application: An online notice of intention to apply for probate is published on the NSW Supreme Court website.
5. Grant of Probate: Once approved, the court issues the Grant of Probate, allowing the executor to manage the estate.

How Do I Apply for Letters of Administration in NSW?

In NSW, the process for applying for Letters of Administration is similar to that for Probate however with some further steps:

1. Search for a will: The proposed administrator must complete searches with relevant organisations and bodies to attempt to locate a Will
2. Identify beneficiaries: The proposed administrator must identify all possible beneficiaries, including obtaining evidence of why they are a beneficiary (marriage certificates, birth certificates etc).
3. Notify beneficiaries: The potential beneficiaries must be informed of the application for Letters of Administration, and, in a lot of cases, a lawyer will obtain their consent for the application.
4. File documents with the court: The proposed administrator submits the application, including the evidence of beneficiaries, death certificate, and supporting affidavits.
5. Advertise the application: An online notice of intention to apply for probate is published on the NSW Supreme Court website.
6. Grant of Probate: Once approved, the court issues Letters of Administration, allowing the Administrator to manage the estate.

How Long Does Probate or Letters of Administration Take?

The time frame for probate or Letters of Administration varies depending on the complexity of the estate and whether there are any disputes. Generally:

• An application should be filed within 6 months of the person passing.
• Once filed with the Court a straightforward application may take 4–8 weeks to be approved by the court.
• Complex estates or contested wills can delay the process significantly, sometimes taking several months or longer.

Some Estate will be distributed after a 6-month period from the date that a person passed away, however in a lot of circumstances it is recommended that an Executor or Administrator wait until after the 12-month anniversary following a person’s death.

What Are the Executor’s Responsibilities After Probate or Letters of Administration Is Granted?

Once probate or Letters of Administration is granted, the executor or administrator has several key responsibilities, including:

• Collecting and managing the deceased’s assets.
• Paying outstanding debts, including taxes, loans, and funeral expenses.
• Distributing the remaining assets to the beneficiaries as outlined in the will.

Executors and administrators have a fiduciary duty to act in the best interests of the estate and its beneficiaries, which means they must carry out their responsibilities diligently and ethically.

Can a Will be contested?

Yes, probate can be contested in certain circumstances. Common grounds for contesting probate include:

• Validity of the will: Claims that the will was forged, created under undue influence, or executed without proper legal requirements.
• Testamentary capacity: Disputes over whether the deceased had the mental capacity to create the will.
• Family provision claims: Eligible individuals (e.g., children or dependents) who feel they were unfairly excluded or inadequately provided for in the will can file a claim under the Succession Act 2006.

What Are the Costs Involved in Probate or Letters of Administration?

The costs of probate and letters administration typically include:

• Court filing fees: In NSW, these are based on the value of the estate, with thresholds increasing fees for larger estates.
• Legal fees: If a lawyer is engaged to assist with the process, fees vary based on the complexity of the estate.
• Other expenses: Advertising fees, valuation costs, and accounting services may also be required during the process.

Many of these costs can be paid directly from the estate’s assets once probate is granted.
In NSW Lawyers typically follow the Probate and Letters of Administration fees set out in the Legal profession Uniform Law Application Regulations 2015 (NSW) for the costs associated with obtaining a probate or Letters of Administration. There are legal additional costs of the administration based on the amount of work required.

Do I Need a Lawyer for Probate?

While it’s possible to apply for probate without legal assistance, it’s often beneficial to seek professional help. A lawyer can ensure the process is completed accurately, guide you through complex legal requirements, and help resolve disputes if they arise. This is especially important for large or contested estates, where errors or delays can lead to significant complications.