Probate – Managing a Deceased Estate

If you are the Executor of a Will, you need to carry out the intentions of the deceased person according to their Will.

In most cases, you need to obtain a Grant of Probate from the Supreme Court. This is, principally, a "licence" to you, as Executor, to deal with the assets in the estate.

We can help you by:

• working with you to identify what the assets of the estate are;
• advising you as to how the Will determines the treatment and distribution of those assets;
• preparing the application to the court and explaining the process to you;
• assisting you to carry out the intentions of the Will, whether by converting the assets to cash and distributing the cash or transferring specific assets to the beneficiaries;
• ensuring that you complete the administration of the estate according to law;
• protecting you, where possible, from claims by creditors or disaffected family members of the deceased (note, you are not held personally liable to any creditors of the estate);
• guiding you on taxation issues in dealing with the assets of the estate.

What do I need to give you to start the process?

In order for the process to get underway, we always request that you provide us with:

• the original Will (or your advice as to where it is located or if there is even a Will in place);
• copies of any statements or other written material which confirm details of, for example, bank account numbers, shareholder reference numbers, superannuation funds and any other assets and liabilities of the deceased;
• the original Death Certificate. This may not be received until a few weeks after the date of death and can be provided to us at that time.

What is a Grant of Probate?

A Grant of Probate is the approval of you as Executor, given by the court, which allows you to proceed with dealing with the assets and distributing the estate to the beneficiaries. Only once a Grant has been made by the court, will you be entitled to deal with the assets by way of collecting the money, selling any assets or transferring the assets.

How do I obtain a Grant of Probate?

Firstly, we write to all the various asset holders and investment bodies to verify the assets of the estate. Once we have received all of these details from the various institutions, we then prepare the Application for Grant of Probate.

The Application is filed in the Supreme Court and, subject to any issues raised by the court, Probate should be granted in around 2 to 4 weeks from the date of filing.

Is there a filing fee for an Application for Grant of Probate?

Yes.

The filing fee payable is dependent upon the gross value of the estate. We can advise you as to the amount of the filing fee once the approximate value of the estate assets is known.

Can I access any assets of the estate straight away?

No. With the exception of obtaining funds from the deceased's bank account for payment of funeral expenses, no other withdrawal or transfer of funds should occur. It is possible, however, for the estate to continue to receive income during this time.

Otherwise, from the date of death until a Grant of Probate is made by the Supreme Court, all assets of the estate will be frozen.

As an Executor of the estate, what are my responsibilities?

As Executor, you need to identify the assets and liabilities held by the deceased, obtain a Grant of Probate of the Will (we can assist you) and, using that Grant of Probate, proceed to collect the assets, pay the liabilities and distribute the assets to the beneficiaries as provided for in the Will.

Am I paid to undertake the duties of Executor?

The short answer to this question is, 'possibly'. 

If you are an Executor but not a significant beneficiary of the Will, then you may make a formal application to the court to claim Executor's Commission before you finalise the estate.  The court will consider all the work that you have been required to do as Executor before making a decision as to whether you will be entitled.  The amount to be paid is often calculated as a small percentage of the gross value of the estate.

If you are a significant beneficiary of the estate, then the court will not usually make an order for the payment of Executor’s Commission.  The court will consider that, by being provided for in the Will, you would already have been fairly compensated by the deceased for your “pains and trouble”.

Is a Grant of Probate required for every Deceased Estate?

No. There are certain instances where a Grant of Probate is not required.

If all the assets of the deceased are jointly held (for example, by a husband and wife and one of them dies), then a Grant of Probate will not be required. All assets held jointly, by virtue of survivorship, can be transferred to the surviving joint tenant without the need for a Grant of Probate.

Also, if the assets of the estate do not include real estate and are minimal (less than about $50,000.00), then the investment institutions may accept a form of indemnity in lieu of the requirement for a Grant of Probate. We can assist you in applying to the relevant institution to waive the requirement of obtaining a Grant of Probate.

What happens if the deceased did not leave a Will?

If, after searching, you cannot locate any Will for the deceased, then the deceased is said to have died intestate.

In NSW, under the Succession Act, there are specific provisions as to how the estate should be distributed and this depends on the relevant family relationship that the deceased had (spouse, de-facto spouse, children and so on).

The right to administer the deceased's estate is usually granted to those who stand to benefit from the estate. Sometimes one beneficiary might apply to be the Administrator and the others may consent to that. The application to administer is referred to as Letters of Administration.

We can assist you in the process of obtaining Letters of Administration and advising you on the provisions of the Succession Act to determine who should receive the benefit of the assets of the estate.