Probate Registry (NSW)
Before an executor can apply for a Grant of Probate to administer a deceased estate, they need to check the Probate Registry of the Supreme Court of New South Wales. The Registry publishes three types of notices that may be necessary to a deceased estate: the ‘Notice of Intended Application for Probate, Administration or Reseal’; the ‘Notice of Intended Distribution of an Estate’; and the ‘Notice of Filing of Accounts’. This article outlines the role of the Probate Registry in the administration of a deceased estate.
What is Probate?
When someone leaves a will, the state has procedures in place to ensure that the will legitimately reflects the final wishes of the deceased. Probate is this process of legally validating the will of a deceased person.
What is the Role of the NSW Probate Registry?
The Supreme Court has sole jurisdiction over the administration of deceased estates in New South Wales. The Probate Registry division of the Court reviews applications for grants and, in accordance with the Supreme Court Rules 1970, keeps an online register of the grants that have been issued by the court. The Probate Registry issues several types of grants, specifically:
- Grants of Probate (where the appointed executor applies to validate the will);
- Grants of Letters of Administration (where someone other than a named executor applies to validate the will); and,
- Grants of Letters of Administration on Intestacy (where there is no valid will and a suitable person applies to administrate the intestate estate).
Notice of Intended Application for Probate, Administration or Reseal
The personal representative (executor or administrator) must check that there is no duplicate or competing notice in the Probate Registry. They can then create an account online with the Registry, keeping a record of the generated court case number as it must be attached to future court documents. The Probate and Administration Act 1898 requires that a notice be published 14 days before an application for a grant.
This notice provides an opportunity for an eligible person to challenge the validity of the will, or come forward with an alternative will. It also allows the creditors of the deceased to make a claim against the estate, and gives relatives a chance to make a Family Provision Claim under the Succession Act 2006.
The information on the notice lodged with the Probate Registry needs to be correct, as inaccuracies can cause delays in the granting of the application. The following data is required for the notice:
- The date of death;
- The will and codicils (if any);
- For the purposes of a reseal, the type of grant that was ordered and the jurisdiction where it was assessed; and,
- The residential address of any executors.
The Wording of the Published Notice
The court dictates the wording that should be used on a published notice. It must include the full name of the executor, including any names that he or she was previously known by to ensure there is no confusion. In addition, it must indicate whether or not:
- the application is being made in reference to a will of the deceased;
- a named executor has renounced their responsibility;
- a named executor has already predeceased the testator;
- an alternative executor is applying for probate; and,
- there is an informal will that the applicant wants to validate.
Probate Registry: Notice of Intended Distribution of an Estate
This notice is not compulsory, but publishing this notice may offer the executor or administrator some protection from future personal liability claims.
Probate Registry: Notice of Filing of Accounts
A Notice of Filing of Accounts should be lodged with the Probate Registry within 12 months of the grant. This notice alerts beneficiaries and creditors that accounts will be lodged with the Supreme Court. Interested parties may inspect the accounts and object to the accounts being passed or claim a commission from the estate. A person who files an objection will be named as a defendant to the proceedings and may be called to make submissions relating to the objection or commission.
When is an Application to the Probate Registry Not Required?
There are limited circumstances where a Grant of Probate is not required. If the estate had limited assets of value, the asset holder (eg. a financial institution) may waive the need for probate if the executor agrees to indemnify the asset holder against any claim from a beneficiary, creditor or other executor.
The other circumstance when a Grant of Probate is not necessary is when the deceased owned only jointly held assets, as the assets transfer to the surviving joint owner upon death. However, it might still be necessary to consult a solicitor in these circumstances to ensure that these assets would not be subject to a Notional Estate Claim.
The area of law that deals with wills and estates in New South Wales is complex, and Armstrong Legal can provide specialist advice for your particular circumstances. We can answer any questions that you have about the Probate Registry and help you apply for a Grant. Please call our office on 1300 038 223 or message us to make an appointment.