What is Probate?

Probate is a grant issued by the Supreme Court of New South Wales. 

The Grant of Probate endorses the last will and testament of a deceased person and the executors who have so applied to prove the will as the deceased’s.

Prior to a Grant of Probate being made the assets of the deceased person vest in the NSW Trustee & Guardian (s.61 Probate and Administration Act 1898). To deal with those assets the executors must obtain the Grant of Probate as upon Grant the assets of the deceased no longer vest in the NSW Trustee & Guardian but with the executors (s.44). 

Once the Grant of Probate has been made the executors who have so applied for the Grant may then attend to their remaining duties as executors, being the calling in of the estate, payment of liabilities and distribution of the estate in accordance with the terms of the will.

All executors named in the will are entitled to apply for the Grant of Probate, although if the Grant is obtained by fewer than all executors the Court will reserve power to the remaining executor(s) to apply for the Grant at a later date. If an executor has renounced their appointment as executor then they will be unable to apply at a later date.

If the deceased person did not leave a will, or if the will did not name a surviving executor willing to administer the estate then an application can be made for Letters of Administration. The Grant of Letters of Administration will be made to the person(s) most entitled to the estate, either under the terms of the will, or the rules of intestacy where there is no will. 

In order for the Supreme Court of New South Wales to have jurisdiction to issue the Grant of Probate the Court must be satisfied that the deceased person has indeed died, and that the deceased person left assets within NSW. If there are no assets within NSW then a Grant should be obtained from the jurisdiction in which the deceased left assets, for instance the Supreme Court of another State.

If the deceased died leaving assets in multiple jurisdictions then an Grant can be made initially in NSW, or after another jurisdiction (for instance Queensland or Victoria) has made the Grant, provided that other jurisdiction is within Her Majesty’s Dominions. If so then the Grant is ‘Resealed’ in NSW. If not then a fresh Grant will need to be obtained in NSW.

Prime Lawyers operates one of the largest uncontested probate divisions in New South Wales. We receive instructions to act for executors every week because we process applications quickly and assist executors obtain the Grant with as little hassle as possible so that the estate can be administered.

If you have a question relating to Probate or are an executor of a will then get in touch with your nearest office to see how we can assist.

We have probate lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.