When your loved one passes away, the last thing you want to do is deal with legal or estate issues.
Do you need a Sydney probate lawyer?
The process you will need to follow depends on whether or not the deceased had a Will.
If there is a Will
If you are an “executor”, the deceased person trusted you to ensure his or her wishes would be carried out in accordance with the terms of their Will once they passed away.
The executor has to:
- Take control of the assets owned by the deceased;
- Identify debts owed to and by the estate;
- Apply for a “grant of probate” at the Supreme Court of NSW in Sydney;
- Pay the debts of the deceased; and
- Distribute the estate to the beneficiaries according to the Will after obtaining a grant of probate.
Maybe there is a Will but there is no executor named in the Will?
Or perhaps the executor in the Will is unable or unwilling to act?
If you are a next of kin, relative or close friend of the deceased, you may apply to the Supreme Court of NSW in Sydney for “letters of administration” to distribute the deceased’s estate.
Is “probate” or “administration” always required?
Sometimes a grant of probate or letters of administration may not be needed.
For example, a grant may not be required where:
- the estate includes only real estate owned as ‘joint tenants’ and jointly owned personal property, or
- none of the asset-holders (such as the bank where the deceased held an account) require a grant to transfer the asset to a beneficiary or to sell it.
If the value of the estate is small and only includes personal property, such as clothing, furniture and jewellery, a grant may not be needed.
What about complex issues in Probate or Letters of Administration?
Question: What if an appointed executor has died or is unable or unwilling to continue to act as executor?
Answer: A person with sufficient interest in the estate can seek the courts approval to install himself or herself to perform executorial duties.
This application is a special grant of administration de bonis non (“administration dbn”) rule 19, Part 78, Supreme Court Rules 1970; and section 63, Probate and Administration Act 1898. An application for administration dbn may be made if the last administrator has died, lost capacity and is no longer able to act, but is not the sole beneficiary. Importantly, all executorial duties must not have been performed. If all executorial duties have been performed it may just be a case of appointing a new trustee under s 6 of the Trustee Act 1925 (NSW).
Question: Both parents died soon after each other. Do you have to make one application for probate or two?
Answer: Unfortunately you cannot short cut the process. If a grant of probate is required on the passing of your first parent then this will still need to be done first. Once that is completed a second probate application is required for the passing of the second parent.
How can our lawyers help?
If you are an executor or a next of kin, our probate solicitors can assist you to obtain a grant of probate or letters of administration from the Supreme Court of New South Wales in Sydney.
Before you come to see us, you should first gather information about all assets and debts of the deceased. You should bring copies of all important documents, including financial statements, the original will and the original death certificate.
Click here to see a handy Checklist on preparing to see your lawyer.
Our experienced Sydney probate solicitors at V.S. George Lawyers can help you:
- Arrange for a Notice of the Intended Application for Probate to be published.
- Obtain “Grant of Probate” (if there is a Will) or “Letters of Administration” (if there is no Will).
- Draft the required legal documents.
- Arrange for a notice to be published once the Grant of Probate is received.
- Assist with the administration of the estate if you do not wish to do it yourself.
- Appear at Court hearings, if necessary.
- Settle any disputes that may arise along the way.
What about legal costs?
In NSW, the fees a solicitor can charge for work to obtain the grant of probate or letters of administration is set by law. The set fees are based on the value of the estate. For more information on the set fees, you can read schedule 3 of the Legal Profession Uniform Law Application Regulation 2015 on the NSW legislation website.
Remember that the set fees lawyers charge do not include:
- Goods and services tax (GST);
- Disbursements (that is, expenses) paid to third parties such as court filing fees and online registry notice fees; or
- Other work carried out by your lawyer to administer the estate after the grant of probate or letters of administration. For example, transferring property to the beneficiaries.
Our friendly and sensitive legal team will respond all probate questions, big or small.
Call V.S. George Lawyers to speak to a probate solicitor.
For more information, or to make an appointment at our Bexley North office (or at one of our serviced offices in Sydney CBD, North Sydney, Bondi Junction, Macquarie Park, Norwest or Parramatta), please contact:
Phone: (02) 9150 6991