Are you the executor appointed in the Will of a family member? Read on to understand what this involves and what will be required of you when the time comes. Having knowledge about the process will make the task easier for you during what is inevitably going to be an emotional and upsetting time.

As executor of a Will, your role will be to finalise all the legal and financial matters of the deceased and distribute the deceased’s assets and possessions as they have requested in their Will.  Applying for probate is one of the early steps in this process. Probate is simply a legal term for the process where the court system ‘proves’ that the Last Will and Testament of the deceased is legal and valid. Once this is complete, you, as executor, can move forward with the job of distributing the estate.  

The mechanism of applying for probate is designed to protect both the wishes of the deceased and the rights of the next of kin and beneficiaries. It also includes publicising the death to ensure the opportunity for debts to be settled appropriately as part of the process.

In the case where a person dies “intestate”, that is, without a legal Will in place, you will be unable to apply for probate but can apply for “Administration” of the estate which is a similar process.  The estate is then distributed in accordance with laws of intestacy which determine beneficiaries following a line of a family tree.  

How to initiate probate 

In NSW probate is granted by the Supreme Court of NSW and there are specific steps that must be followed and allowable time frames for the probate division of the Court  to grant the probate 

Timeframe

The probate application cannot be submitted until at least 14 days after the date recorded on the death certificate but should be submitted within six months.  Probate applications that are submitted more than six months after the death of the deceased will require an affidavit from the executor containing an explanation to the court about why there was a delay.

Documents required

The documents you will require to achieve probate from the court include:

  • The deceased’s original Will – this is an important legal document so be sure to handle it carefully, do not add or remove staples, make any markings or even fold the document
  • The original death certificate
  • An inventory of property listing all of the deceased’s assets and liabilities at the time of death.  This often involves contacting the asset holders (such as banks) to determine the value of the asset and to determine any particular requirements that will need to be met before the asset is released.
  • The full names and residential addresses of the Will’s witnesses
  • A completed ‘motion for probate’ application form
  • An affidavit from the executor

Process

Once you have gathered all the documentation required for probate the process is as follows:

  1. Publish a public notice of intended distribution of the estate with the NSW Online Registry – this allows the opportunity for any creditors  (or claimants) to come forward and notifies the court of your intention to apply for probate;
  2. Fourteen days after the public notice is published, the probate application can be submitted with the Supreme Court;
  3. If needed, respond to any queries from the court;
  4. If all the documents for probate are completed and submitted correctly, the court process will take around 20 working days to approve.

Costs

The costs for obtaining a grant of probate by the Court will include advertising fees and court filing fees.  The advertising fee is fairly nominal.  The filing fee is determined in accordance with a scale which is impacted by the overall value of the estate. 

There will also be a fee for obtaining the original death certificate from the NSW Registry of Births, Deaths and Marriages.  The funeral director will usually apply for and supply a death certificate for you.  This original will need to be submitted to the Court and can be returned to you upon your request.  Alternatively, you may wish to organise a second copy for your records.  Additionally, if you engage a solicitor to assist with the documentation and legalities there will be legal fees. 

Keep in mind that these costs are not expected to be paid by you personally, they ultimately come out of the deceased’s estate prior to distribution to the beneficiaries.

Is probate always necessary?

Probate is not necessary in all matters.  Much will depend on the deceased’s assets and the requirements of the asset holders (the bank etc)  It’s best to get qualified legal advice to confirm if this applies in your circumstances.

I don’t want to be Executor

If you have been made executor of an Estate and at the time of the person’s death you are unwilling or believe you are not in a suitable position to perform your duties in this role, there are options.  In the case where there are multiple executors listed in the Will, the remaining executor/s can apply for probate without you, you just need to sign a renunciation form.  In the case where there is only one executor, then another person would have to apply for administration of the estate.

Other situations that can complicate probate and the distribution of an estate include:

  • Where a claim is made against the Estate by an eligible person.
  • Blended families where spouses and offspring from multiple relationships are eligible for inheritance.
  • Where property and assets are located across different states and/or countries.

Estate matters can be complicated and some are simply time-consuming.  Please do not hesitate to get in touch with us for initial advice relevant to your matter.

The short answer is that estate planning is very important. It’s important for reasons that might surprise you.  Whilst it may not be a nice thing to think about, talking about your wishes and getting proper advice can make things a lot easier for your loved ones later on.

Why is it important?

  • When you die, your estate may be distributed in ways that you had not intended:
    •  If you are not formally divorced, your spouse may inherit your estate either because you haven’t updated your current will or you don’t have a will at all – do you want that??
    • If you are divorced, your Will, or parts of it, may be considered revoked and your estate may be distributed in a way that you did not intend.
  • Even if your estate goes to your kids like you may have wanted, who is to manage this money until they become an adult? Your former partner? And their new partner? You might not be ok with this and a properly constructed Will allows you to appoint a trustee to manage your children’s inheritance until they are adults.
  • Your power of attorney and enduring guardianship appointments are not revoked just because you are separated or divorced. Would you want your former partner controlling your finances or to be making decisions about your health care including life and death decisions?
  • Superannuation is easy to forget about it – its money that we have never even seen!!! But often it is quite a significant asset and your trustee of the fund determines where it is paid, NOT your will.  If you have taken the right steps, your trustee may very well determine that your ex is still the primary person to benefit from your superannuation despite your separation.
  • If you have entered into a new relationship, do you want to make sure your children still receive the inheritance you hoped to provide them? In absence of a will, your children could end up with less than you expected. If you have a will but it doesn’t properly provide for your partner, this could lead to costly disputes.  Estate planning for blended families is essential in order to balance your responsibilities and to achieve the intended outcomes as much as is possible.

Post-separation is a period of huge change in your life. Regular revision of your Will, Power of Attorney and Enduring Guardian is recommended and provides a chance for you to take control of your life so that you and your loved ones are properly protected.  Contact us today and we can help you ensure your wishes are properly documents.