Probate

Probate is defined as the process whereby in a court of law a will is ‘proved’ as a valid and accepted form of public documentation which represents the final truthful testament of a deceased. Probate matters which involve state residency [or real property] of the deceased at the time of the death but in absence of a legal will may also be settled as by the laws of intestacy.

At Spencer Lawyers we understand that the process of dealing with a loved one’s death may be difficult and emotional and as such we offer both a competent and empathic hand of support to help you through this process and to finalise your loved ones wishes.

What is a deceased estate

A deceased estate includes the property and assets of a person who has passed away. Generally, the deceased estate is held in trust until the transfer of the property and assets to the nominated beneficiaries.

Purpose of a grant of probate

A grant of probate is a legal document that authorises an executor (or executors) to manage the estate of a deceased person in accordance with the provisions of the deceased’s will.
Executor duties
  • The executor/ executors of an estate have the responsibility of collecting the deceased’s assets, paying any debts and then to distribute the asset to the beneficiaries.
  • The executor may take a grant of probate to any persons or debtors (such as banks and retirement villages) that are holding bonds and require them to transfer any monies or assets to the executor themselves.
  • Uncontested applications for grants of probate are considered and determined in chambers by a registrar. Grants of probate made on an uncontested application are known as grants in common form.
In the circumstance where the deceased has left no assets a grant of probate will NOT be made in New South Wales as The Supreme Court of New South Wales will not have the jurisdiction.

Why do you need a grant of probate?

In NSW there is no statutory requirement to obtain probate in every case. For example
  1. Joint tenants and tenants in common
  • In the circumstance where the assets of the deceased were jointly owned as joint tenants (that is where the co-owners did not own distinct portions of the property).
  • If death of one of the joint owners occurs the property will automatically pass to the remaining joint tenant or tenants. There would be NO NEED for a grant if all the deceased's assets were held as joint tenants with someone that survived them.
However, depending on the type, size and values of the assets located in New South Wales it may be necessary to obtain a grant of probate.
Timeframe to apply
  • If an application for probate is filed after 6 months from the date of death of the deceased, an explanation must be given to the court accounting for the delay.
  • There is no approved or prescribed form for an Affidavit of Delay. If you are preparing a separate Affidavit of Delay adapt UCPR Form 40 and head it "Affidavit of Delay" and provide an explanation for the delay in the body of the affidavit.
  • These rules are governed by the Supreme Court Rules 1970, Part 78 Rule 16
Application process
  • Establish eligibility
  • Advertising a notice of your intention to apply for a grant of probate
  • Qualifications in a notice
  • Complete the forms

The will

Original will
  • In the process you should check that you have the original will (and codicils, if applicable)
  • The original will (and codicils) must be filed with the probate application and will be retained by the Court. To be valid a will or codicil must be in writing and signed by the testator and by two witnesses and be verified that the will is not a carbon or photocopy.
  • If you cannot find the original will but have found a copy, or if the will is unsigned or has not been properly witnessed, it may still be possible to apply for probate. Contact Spencer Lawyers for further details
In the circumstance where the original will cannot be found but there is a copy of a will which is believed to be the last will of the deceased then the executor named in the copy will may be able to apply for probate on the copy of the will. However
  1. Searches must be done to locate the original will
  2. A copy of a will is considered a limited grant of probate
This content is intended to provide a general guide to the subject matter. Specialist advice from our Legal team should be sought about your specific circumstances. Please do not hesitate to contact us: