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When is Probate Required?

Death Duty was abolished in NSW over 40 years ago as was Federal Estate Duty.  However, in many estates it is still necessary to apply for probate.  If a person dies and the deceased person’s assets are held with another person as joint tenants, the need to apply for probate is unnecessary as all of the assets pass by survivorship to the surviving holder of those assets.  If however, an asset is held with another person as tenants in common, then the asset passes under the terms of the Will of the deceased and not by survivorship.  Of course, any assets solely in the name of the deceased pass under the terms of the Will of the deceased. 

Before the estate can be administered a Grant of Probate must be obtained.  This means that the executor named in the Will must apply to the Supreme Court of NSW Probate Division for a Grant of Probate.  The original Will, Death Certificate and other supporting material must be supplied to the Court and if all matters are satisfied, then probate is granted.  The Grant of Probate is an Order of the Court which means that the executor named in the Will is formally appointed as the executor of the estate (ie the deceased’s legal personal representative) and is empowered to deal with the assets of the deceased as trustee for the deceased and carry out the terms of the Will.  So, if the deceased owned a property and left that property to a third party, then the executor shall transfer that property to the third party beneficially.  If however, the deceased directed that the property be sold and the proceeds of sale split say, between his or her four children, then the executor must transfer the property to his or her name as executor and then sell the property.  After the sale is completed, the net proceeds of sale can be distributed in accordance with the terms of the Will. 

The executor is bound to act in the best interests of the beneficiaries at all times.  The executor cannot be seen to benefit one or more of the beneficiaries over other beneficiaries.  The role of an executor on occasions can be a difficult task.

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