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Probate Lawyers – What to Know About Probate

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The most simple way to define probate is that it is authority. Authority of the executor to deal with a deceased persons estate.

If a person dies and has property in NSW, the executor must obtain a grant of probate. The Grant of Probate is made by the supreme court of NSW. Once a grant fo probate is made, the executor is authorised to sell assets and property which belongs to the estate. The executor also has the authority and is responsible to pay the debts and liabilities of the deceased person such as a mortgage, credit card debts, loans and all other liabilities the deceased had as at the date of his or her death.

The executor also has the responsibility to acknowledge creditors of the estate and to deal with any claims that may be made against the deceased’s estate.

For example, the deceased person may have been a widow and had 3 children. The deceased person may have decided to make a will and gift the whole estate to 2 of 3 children and disinherit the other. In this case, the child who was left out of the will may try and make a claim. If this is the case, the executor appointed under the will has a duty to deal with any claim made against the estate. If the executor decided to ignore this claim, he or she will be held personally liable. Most Probate Lawyers deal with claims against estates on a daily basis and is able to represent the estate in this case and ease the burden an executor may be faced with such as in this situation.

An executor has a role in distributing the estate and the executor may be liable for any losses suffered by the beneficiaries and or creditors of the deceased if there is any delay is realising the deceased’s assets.

If the executor does not fulfil his or her role, he or she may be held personally responsible for any losses suffered by the beneficiaries. It is very important to seek legal advice when acting on behalf of a deceased’s estate in order to avoid any legal issues which the executor may be unfamiliar with.

We recommend that you speak with a probate lawyer who can handle the whole process and provide you with proper legal advice.

Basically an executor acts as if they were the deceased, the executor distributes the estate to beneficiaries, pays all liabilities due and payable by the deceased and also organises the funeral and the disposal of the deceased’s body which may be directed in the will.

The executor has a duty to defends a claim brought against the deceased estate. People an claim including a spouse, a child of the deceased, a person who lived in a close personal relationship with the deceased may claim from the deceased’s estate for proper maintenance (which may imply to continue a pre-existing state of affairs or provision above a mere sufficient means to live), education and advancement in life.

It is very important to engage the services of a probate lawyer who has experience dealing with deceased estate matters.

Once the assets and properties of the deceased’s estate are sold and the liabilities of the deceased’s estate are paid, the executor has the responsibility and duty to distribute the estate to the beneficiaries as nominated in the deceased’s will. The estate must be distributed in accordance with the terms of the will unless all the parties to the will agree to amend the distribution. Note if this is the case, all parties must agree and this must be reflected in an agreement which is called a Deed of Family Arrangement or a Deed of Arrangement. Most probate lawyers have experience dealing with these types of matters and can assist to prepare the necessary documentation. We recommend that you speak with a probate lawyer who can handle the whole process and provide you with proper legal advice.

In support of an application for a Grant of Probate you will require the following:

  • The original Will
  • The Original Death certificate of the Deceased
  • Details of ALL assets that the deceased owned or had an interest in as at the date of his or her death
  • Details of ALL debts and liabilities that the deceased had as at the date of his or her death
  • Notice advertised via the Supreme Court of NSW that an Application for a grant of Probate will be made.
  • Various documents must be filed in the Supreme court of NSW such as Affidavits and various material to support an application for Probate

We recommend that you contact a probate lawyer to handle the deceased’s estate.

An executor cannot deal with an estate without a grant of probate in the event that a will exists and the deceased passed away with real property or assets of a particular value.

Once probate has been granted in an estate, the executor will have authority to call in all the assets, the executor will have the power and authority to sell real estate, shares and all other assets of the deceased estate.

An application for a Grant of probate should be made within 6 months from the date of the of the deceased. If an application is brought to the Supreme Court of NSW after this person, the executor must file an Affidavit of Delay and set out evidence as to why the executor has delayed to file the application for probate.

We recommend that you speak with a probate lawyer who can handle the whole process and provide you with proper legal advice.

If a Grant of Probate has not been made, the executor will not be able to call in the asset of the deceased such as access bank accounts (particular thresholds apply with different banks).

The executor will not be able to sell shares, motor vehicles or real property or transfer other assets to the beneficiaries in accordance with the terms of the will until the Grant of Probate has been made. For example the deceased may have passed away with a large share portfolio. The share registry may not transfer the shares to the beneficiaries until a grant of probate has been made. The shares may not be sold until a grant of probate has been made. For example the deceased may have Westpac shares worth $50,000.00. Probate will be required to handle the sale or transfer of the shares.