Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
-
Who can apply for probate?
- You need to be named as an executor of the will to apply for a grant of probate.
- If you are not named as an executor you may be able to apply for a grant of letters of administration.
- Letters of administration will provide you with the same power to administer the estate as a grant of probate.
- You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice.
>> Read more & related FAQ's
-
Is it essential to apply for probate?
- You are not required to apply for probate in every case.
- It may be that asset holders such as banks, superannuation funds or insurance companies require a grant of probate prior to releasing funds.
- This is to ensure that they release funds to the correct person. As such they may require proof of probate. You should ask whether certified copies of the death certificate, the will and your identification will be sufficient.
- Some assets such as a water entitlement licence or real estate held alone or as a co-tenant can only be transferred to a beneficiary by an executor under a grant of probate or letters of administration.
>> Read more & related FAQ's
-
Can you stop probate from being granted?
- If you lodge a caveat against probate being granted you can put a hold on it.
- A caveat will remain in force for 6 months from the date it is lodged.
- If it is found that you have no proper reason to lodge a caveat the court can strike it out.
- If your caveat is struck out you could have to pay the legal costs of the executor.
>> Read more & related FAQ's
-
Who pays for associated costs of probate?
- The professional costs and the filing fee are payable from the estate's assets following the grant of probate being obtained and prior to any distribution to beneficiaries.
- This means that if you are an executor you will be reimbursed for any solicitor’s fees or filing fees that you have paid out of your own pocket.
>> Read more & related FAQ's
-
Is it necessary to see a solicitor?
- You don’t have to use a solicitor to deal with the administration of an estate.
- It is possible to complete the process yourself.
- However there are certain circumstances when it is advisable to use a solicitor such as where the estate is more complicated, if you don't have much time, if there is a dispute over the estate or if you don't feel up to the task.
- Our LegalPlan™ membership will allow you to ask lawyers to handle your probate application for a Fixed Fee Quote.
>> Read more & related FAQ's
-
How long does it take to get a grant of probate?
- If the estate is not complex and all assets and liabilities are known to the executor then the application may be filed in the probate registry of the Supreme Court of NSW upon expiration of the 14 day period of notice.
- Once the application has been filed it will be processed by the court. The court will evaluate the application and if they have no further queries the grant of probate is sealed with the mark of the Supreme Court of NSW and returned to the applicant.
- The time it takes for the court to process an application will depend on how many applications there are before the court at that time.
>> Read more & related FAQ's
-
Do you have to be an executor if you don’t want to be?
- It is possible to ‘renounce’ (refuse) your role as the executor of a will by signing a formal renunciation and filing it in the Supreme Court of NSW.
- This should be completed as soon as possible and before you take any action in relation to the estate. A solicitor can assist with this.
- If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.
- Once you have taken any action (intermeddled) in the affairs of the estate you are no longer permitted to renounce your position as executor.
- The only exception is if you find that you are unable to adequately fulfil your duties and you appoint the NSW Trustee & Guardian or a trustee company in your place.
- If probate has been granted and the estate has largely been dealt with but there are ongoing trusts such as bequests to beneficiaries who have not yet attained the age at which their inheritance will vest in them or the executor is acting as trustee of the remainder of a life estate then the executor may retire as trustee and appoint a new trustee in their place.
>> Read more & related FAQ's
View more Information on Probate