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This article explains what a probate is, how probate is obtained and when it is required.

What Is A Probate?

Probate is a certificate granted by the Supreme Court of New South Wales. The certificate generally states that the Will of the Deceased has been proven as valid and is registered with the Probate Division of the Court. The Grant of Probate also states that the executor has the authority to administer the Deceased’s estate. In other words, Probate is an actual document that is issued by the Court and empowers the executor to deal with the Deceased’s assets.

How is Probate Obtained?

Before an application for Probate can be made, the executor must advertise his or her intention to apply for Probate on the Supreme Court Online Probate Registry. This alerts any creditors of the Deceased to the Deceased’s passing and directs them where to forward details of any outstanding accounts. Until January 2013, this was done by way of a notice in the newspaper. 

Probate is obtained by the executor, usually assisted by Solicitors, filing a “Summons” in the Probate Division of the Supreme Court. The Summons is a document prepared by the Solicitors and it is a request for the Court to grant Probate of the Will to the executor. The Summons is supported by evidence that is produced to the Court to support the executor’s request.  The evidence is given by way of Affidavit. The Affidavit sets out information relating to the estate and is sworn or affirmed by the executor. The Affidavit sets out some of the history and circumstances surrounding the deceased and their assets. The Affidavit is accompanied by the following documents:
1. The last Will of the Deceased.
2. The Death Certificate of the Deceased.
3. A list of the Deceased’s assets and liabilities (and their approximate value) at the date of death.
Court filing fees must be paid when the Summons and the Affidavit are submitted to the Probate Division of the Court. The filing fees and the Solicitor’s fees for preparing the Probate documentation and assisting the executor to obtain the Grant of Probate are set by a regulated scale that is based on the value of the assets of the Deceased’s estate. 

When is Probate required?

Generally probate is required when:-
1. The Deceased owned land in his or her sole name and that land is to be transferred to beneficiaries or the executor.
2. There are substantial assets, usually over $15,000.00 being held by institutions such as banks, building societies and superannuation funds and these institutions will not release those assets until a Grant of Probate has been provided to them.  The Grant of Probate provides these institutions with sufficient security and confidence that they are legally able to deal with the executor and release the assets.

For any questions in relation to this topic or any other Estate Planning matter, please call us on 1300 727 813 or email us.

Related articles:
- Is It Time To Update Your Will?
- Changes To Probate Legislation

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