If you have lost a loved one you may have heard the term Grant of Probate, especially if you are named as an executor in the Will. A Grant of Probate is needed as part of the process involved in administering an estate. In this article we take a look at what probate is, the process that is involved, who can apply and what timeframes are involved.
What is probate?
Probate is an order of the Supreme Court officially approving a will. Getting a grant of probate is what allows the executors to move forward with administering the will of the deceased. Where there is no will, it’s called Letters of Administration, rather than Probate.
The process of getting a Grant of Probate is a state-by-state proposition and is determined by where their permanent home was at the time they died. So, if they are in the ACT, there will be an application to the Supreme Court of the ACT. If they were in Queensland, it would be an application to the Supreme Court of Queensland. It is the same for every state and territory.
If the person who died has a property and lives in the ACT but also has a property in New South Wales, then in addition to getting a grant of probate in the ACT, you will need to apply for what is called a Reseal of the Grant of Probate in the state where that property is located.
For example, if the deceased has a property in Sydney and you have applied for a Grant of Probate in the ACT, then after you have received the Grant of Probate in the ACT you will need to file an application for a reseal of the Grant of Probate in the Supreme Court of New South Wales. You cannot start the reseal process until you receive the first Grant of Probate.
What is the process?
Before you file an application with the Court, you must first publish a notice of intention to make the application. This allows anybody who has an interest in the estate to be aware that the application is being made, as well as informing anybody who may have a claim against the estate.
The notice will say that if a person has a claim, they must send it to executors to the address in the notice. People may come forward saying they are owed money by the person who died or that they have some other claim against the estate. The Notice will either be posted on the website of the Supreme Court (in NSW) or it will be a notice published in the newspaper (in the ACT the Canberra Times).
Having published the notice you must wait fourteen days before you file the application for the Grant of Probate. The application for the Grant of Probate is accompanied by an affidavit from the executors named in the will. The affidavit is quite formal and whilst there are differences in form from state to state, the affidavit essentially covers the following things:
- The identification of the last Will, the original of which must be filed with the Court;
- Proof of Death by reference to the Death Certificate ;
- The identification of the assets and liabilities of the estate together with their estimated value.
So, you will need to have the Original Will, the Death Certificate and also importantly you will need to have the necessary information and documents to be able to prepare an inventory of property and the value of that property along with any liabilities.
There are certain other things that will need to go into the affidavit. For example, you need to be able to say how you know that the Will was the last Will of the deceased and detail what searches and enquiries you have made to check that there was not a later document than the one you are relying on.
In most cases, the application for the Grant of Probate is dealt with administratively by a Registrar of the Court, who will read the documents filed with the Court and if satisfied that everything is in order, will issue the Grant of Probate, which is a formal document to which the seal of the Court is affixed and which has attached to it a copy of the Will. If there are any deficiencies in the documents, the Registrar will raise a requisition, which must be satisfied before the Grant of probate will be issued by the Court. The Court process is relatively quick, with most Grants being issued within 7-14 days of the application being filed with the Court.
The Grant of Probate is the official document which will be required by and relied upon by banks, share registries, government departments and others in order to release assets to the executors. So if the deceased has a bank account, you as executor can go to the bank and give them a certified copy of the Grant of Probate to show that you have authority to close the account and have the account proceeds transferred to the estate bank account. Likewise the Land Titles Office will require, amongst other things, a certified copy of the Grant of Probate before transferring title to any of the deceased’s property to you as executor.
Who can apply for a Grant of Probate?
The people who can apply for a Grant of Probate are the executors named in the Will. If the person who died does not have a will, you will be required to apply for Letters of Administration rather than a Grant of Probate. The persons who can apply for Letters of Administration when there isn’t a Will are specified in relevant state and territory legislation. Essentially, they will be the spouse, children or next of kin of the deceased. In certain cases persons who are not related can apply but they will have to demonstrate that they have an interest in the estate.
The process for obtaining a Grant of Letters of Administration is essentially the same as for a Grant of Probate. There being no Will, the estate will be distributed under the relevant laws of intestacy for the state or territory in which the Grant is obtained. As with a Grant of Probate, the asset holders will require to be provided with a certified copy of the Grant of Letters of Administration before releasing assets to the administrators of the estate.
Related article: Probate vs Letters of Administration
How much time do I have to get a Grant of Probate?
Most jurisdictions require that you file the application within six months of the date of death and if you do not file it within six months then you will need to explain why you have not been able to do so. Sometimes it may prove difficult to file during this time because there might be issues around claims that are being made or issues around identifying the assets and liabilities.
How long after probate can inheritances be distributed?
There is a concept called the ‘executor’s year,’ that has been recognised in the law going back centuries as the time within which the executor should administer the estate. This time starts from the date of death of the deceased person. Subject to the matters noted below, it will usually be possible to complete the administration of the estate within this period. The ‘executor’s year’ is not a hard-and-fast rule, more of a guideline. In reality, the time taken will depend on the complexity of the estate and other issues such as whether the estate is involved in any litigious proceedings.
Some estates are more complicated than others as they may involve not only property, shares, superannuation and bank accounts, but may for example include an interest in a business which needs to be sold. In such cases there may be a lot of work that must be done in order to complete the administration and completing the administration may not be possible within the 12 month period. In other cases the administration may be delayed while creditor claims are being determined or where other disputes, including family provision claims are being resolved.
Getting the right advice and assistance
If you are the executor of a will or a close relative who needs to apply for a Grant of Probate or Letters of Administration, seek the guidance of an experienced estates lawyer to help you through the process. Specialist wills and estates lawyers who work in this area day in, day out are alert to the potential issues that can arise and can support you with confident decision making as an executor.
The DDCS wills and estate planning team are highly experienced and specialise in helping people through processes like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.