What is a Grant of Probate? Why Do I Need It?

When someone passes away, their Will (if they have one) usually needs to be validated by the Court before their estate can be administered. This process is called probate.

A Grant of Probate is a court order confirming:

• the validity of the Will;

• the death of the Will-maker; and

• the authority of the Executor to administer the estate in accordance with the Will.

In New South Wales (NSW), probate is issued by the Supreme Court of NSW. Most grants are made in “common form” (without the need for a hearing). However, where the validity of a Will is disputed, probate may be granted in solemn form following formal court proceedings.

When is probate required in NSW?

Probate is generally required when an asset holder (such as a bank or financial institution) demands it before releasing assets. Common circumstances include where the deceased owned:

• real property (a house or land) in their sole name;  

• significant funds in bank or investment accounts; or

• superannuation balances payable directly to the estate.

  
  

When is probate not required in NSW?

Probate is generally not required where:

• The estate is small and does not justify a grant; or

• All assets were held jointly with another person (as these automatically pass to the surviving joint owner).

Do I need to obtain probate?

It depends on the assets of the estate. Executors are usually responsible for applying for probate where required. If you are named Executor but do not wish to take on the role, you may renounce probate, allowing another appointed Executor to act instead.

In some cases, if the Executor does not apply, a beneficiary or another interested person may apply to the Court for a grant of representation.

Who is entitled to apply for probate in NSW?

The Executor named in the Will is usually entitled to apply, provided there are no restrictions in the Will. A substitute Executor can only apply if the first-named Executor renounces probate or is unable to act.

When should probate be applied for?

Under the Probate Rules (Part 78 of the Supreme Court Rules 1970), an application for probate should be within six months of the testator's death. If an application is lodged outside this timeframe, an explanation for the delay must be provided in the form of an affidavit.

How long does probate take?

The timeframe varies depending on the Court’s workload and the complexity of the estate. On average, it takes around six weeks from the date the Court receives the application for probate to be granted.

What is a reseal of probate?

A Grant of Probate only has legal effect in the jurisdiction where it was issued. If the deceased held assets in another Australian State or Territory, the Executor will usually need to apply for a reseal of probate in that jurisdiction.

A reseal recognises the NSW Grant of Probate as if it were an original grant made by that State or Territory. This is a common and generally simpler process than applying a fresh grant.

Other Probate FAQs:

Do all estates require probate?

No. Probate is generally only required when significant assets are held in the deceased’s sole name.

Can probate be contested?

Yes. Challenges may arise if the validity of the Will is questioned, or if a family provision claim is made by an eligible person.

Who pays for probate?

The costs of obtaining probate (including Court filing fees and legal fees) are paid from the estate.

What happens if there is no Will?

If a person dies without a valid Will, their estate is administered under intestacy laws. In this case, an application for letters of administration is usually required instead of probate.

Final thoughts

Probate can be complex, and whether it is required depends on the size and structure of the estate. Executors and beneficiaries alike can benefit from tailored legal advice to ensure compliance with the law and the smooth administration of the estate.

At SYC Legal, we assist executors and families with all aspects of probate and estate administration. Contact us today at info@syclegal.com.au or click here to arrange a confidential discussion about how we can assist you.

*The information in this article is for general guidance only and does not constitute legal advice. You should seek professional advice before acting or relying on this content.