When a person dies leaving a valid will, it is often necessary to obtain a grant of probate.
This involves filing at the Probate Registry an application (with affidavit evidence of such matters as assets and liabilities and listing the beneficiaries with particulars of their entitlements). Before this can be done, complete information about a person’s assets and liabilities needs to be obtained, verified and the Will needs to be checked. Where there is a potential for a claim to be made against the estate, the effect of such a claim needs to be considered.
Usually, an estate cannot be administered until probate has been granted, because it is only at that time that the executors have legal title to deal with the estate assets. Executors who purport to deal with assets of the estate prior to a grant of probate can risk personal liability.
In some cases an estate may be very simple and probate may not be necessary. This usually only occurs if the deceased had very few assets or if their assets were owned as “joint tenants” (for instance, a home owned by husband and wife as joint tenants or a joint bank account). In those cases, the survivor can normally have the asset transferred into their name or deal with the asset without the need for probate. However, if the deceased owned shares or other property or investments in their own name, a probate application will be necessary.
Where a person owns assets in different States or Territories or other countries, it is usually possible to obtain a grant in the State or Territory in which they lived and then to have this recognised in the other places where they held assets, so that those assets can be dealt with by the executors.
The legal fees charged for obtaining a grant of probate in New South Wales are based on a scale set by the Supreme Court.
The steps required to obtain and establish legal title to particular assets can sometimes be quite complex. There might be unusual procedural issues or the Court may issue ‘requisitions’ (a list of requirements to be met) of a technical nature. Without the help of expert advisors, there can be significant delays in these situtations in obtaining a grant of probate, resulting in long delays in finalising the estate.
Quite aside from the procedural steps to be taken in obtaining a grant of probate, executors always need to consider the tax and accounting aspects relevant to the estate. Particularly important are timing issues relating to tax, perhaps where the executor (or a beneficiary) seeks a prompt sale or where sale of assets might not occur and they might be retained for a longer period to defer the impact of taxes.
Our team can provide you with specialist advice and reliable information about Estate Administration. Our accredited specialists include: