What is the purpose of Probate?
In general, when a will is written, an executor will be appointed to pay the debts of the estate and collect assets for distribution to the beneficiaries. In order to gain ‘permission’ to execute these duties, the executor must apply for a grant of probate through the Supreme Court of NSW. This legal document can then be taken to places such as banks, super funds, etc. to have assets released so that the estate can be managed.
Am I Eligible to Apply for Probate?
In order to apply for probate there needs to be a will and an executor needs to have been nominated in the will. If this is not the case, it is likely that you will need to apply for letters of administration.
Do I need a grant of probate?
Executors will require a grant of probate where they need assets to be released (eg: money from a bank). Some estates are small enough that this is not required. For example, if there is property held in joint tenancy with someone, and that property passes automatically to the other person, then it is unlikely that a grant of probate is needed.
Where there are smaller estates, without property, asset holders such as banks and super funds may release these assets without a grant of probate.
However, where property is held in one name or in tenants in common, then a grant of probate will likely be required to deal the property.
Time-frame for lodging Probate
Probate must be applied for within 6 months from the date of death or you will be required to complete an affidavit explaining why there was a delay.
Note: Probate can only be applied for in the state where assets are held. For example, you cannot apply to NSW Supreme Court for an estate where the assets are in Queensland. If the estate had assets in multiple states then it may be necessary to apply for probate in each state.