A Grant of Probate is formal approval from the Supreme Court of NSW that validates a will and confirms that the executor has the legal right to act on behalf of the estate. Probate allows the executor to distribute the estate to beneficiaries. If a deceased passes away without ever having a will, the alternative application is for Letters of Administration.
Do I Need Probate?
You will always need probate if the deceased owned a house or land in their sole name or was a part owner as tenants in common. You may also require probate to deal with other assets such as money in sole bank accounts, superannuation entitlements, shares and life insurance.
Joint Tenants and Tenants in Common
If you and the deceased owned real estate together as joint tenants, or had joint bank accounts, you may not require probate as the law of survivorship applies. When the assets of a deceased person are jointly owned as joint tenants, the property passes to the surviving joint tenant without probate. A solicitor will help you transfer the real estate into your sole name with the land titles office (now known as NSW Land Registry Services).
However, if real estate is held solely in the name of the deceased person or if a share of real estate is owned by the deceased as tenants in common with someone else, a grant of probate will be required in order to deal with the asset.
A title search of the property will confirm whether the property was held as joint tenants or as tenants in common.
What if there is no will?
If the deceased passed away without leaving a will, an application with the Supreme Court for Letters of Administration can be made. The applicant will need to prove to the Court that they attempted to locate a will but were unable to do so, either in the deceased’s possession or at their solicitor’s office. The applicant is normally a spouse, a close family member or an adult child of the deceased person. They are required to provide evidence to the Court to confirm their relationship to the deceased and the usual probate process is then carried out.
An application for Letters of Administration is also made when the Will drafted is invalid.
Executors and Administrators
An executor is the legal personal representative of the deceased, this person’s role is to carry out the instructions in the deceased’s will. When there is a valid will, an executor will be appointed.
However, if the deceased did not leave a will, then the legal personal representative is known as an Administrator.
Estate Administration can be a complex area of law. Our Estates Team has decades of experience in assisting people to apply for probate and manage the estates of their loved ones. Let us help you.
