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What is Probate?

What is Probate? When is it required?

When a person dies with assets in his or her sole name, an application for a grant of Probate may be required to deal with those assets. This means that the executor named in the Will must apply to the Supreme Court of NSW for a grant of Probate. The Court will require the last Will of the deceased and also the Death Certificate together with other information in relation to the beneficiaries, assets of the deceased and identification of the deceased’s signature on the Will. 

If the Registrar of Probate is satisfied with the application made by the executor of the Will, then Probate is granted in respect of the Will and the executor then becomes the legal personal representative of the deceased.  The grant empowers the executor to carry out the terms of the Will and deal with the assets of the deceased. Essentially, the executor stands in the shoes of the deceased for the purposes of carrying out the terms of the Will.  The executor must also ensure that each beneficiary receives his, her or their entitlement described in the Will. 

Until probate is granted, all assets including bank accounts, real estate and shares are frozen and assets cannot be sold or transferred to beneficiaries.  Once Probate is granted, a copy is provided to the asset holder (eg a bank or building society), together with any other documents required by the asset holder and the account proceeds, in the instance of a bank will then be paid to the estate allowing the executor to distribute the proceeds in accordance with the terms of the Will. 

If the deceased person held all of his, her or their assets as joint tenants with another person (usually his, her or their spouse), then those assets pass automatically to the surviving joint tenant on the death of the deceased person without the need for an application for a grant of Probate.  However, this does not occur where an asset is held by the deceased and another person as tenants in common.

Finally, if the assets of the deceased are modest, then an asset holder may agree to release the asset without a grant of Probate.  In this instance, the asset holder may have other requirements for an executor to satisfy before it releases the assets to the executor. 

For further information or advice contact our wills and estates expert, Cavelle Lindsay

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