What Is Probate?

Probate is an order made by the Supreme Court of NSW that the executor named in the deceased’s will is entitled to administer the deceased’s estate. Once it is granted the executor can collect the estate assets and distribute the estate in accordance with what is in a deceased person’s will.

What is the executor’s role?

The executor of an estate is the deceased’s representative and is responsible for:

• collecting the deceased’s assets;
• paying any of the deceased’s liabilities; and
• distributing the deceased’s assets to the beneficiaries, pursuant to the deceased’s Will.

A grant of probate allows the executor to deal with the deceased’s estate in accordance with their wishes set out in their will.

What powers does an executor have?

After the court has granted probate, the executor can submit the grant of probate to the various asset holders to collect the deceased’s assets. Likewise, the executor can submit the grant of probate to the debtors of the deceased’s estate.

If the deceased held assets in NSW, then the relevant court to apply to for a grant of probate is the Supreme Court of NSW. If the deceased did not hold assets in NSW, then a grant of Probate will not be made by the Supreme Court of NSW.

Where is probate granted?

The executor may be required to apply for a grant of probate in each place the deceased held assets or to apply for a reseal of probate already granted if the deceased held assets outside NSW or overseas.

Where an application for a grant of probate is not contested, the application will be considered by a Registrar of the Supreme Court in Chambers. If an application for a grant of probate is not contested, then the grant of probate is known as a grant in common form.

Is probate necessary?

It is not always necessary to apply for a grant of probate. Whether probate is required depends on the type and value of the assets held in NSW and the requirements of the various asset holders. In some cases, asset holders may release assets of lower values without requiring probate to be obtained.

If you wish to discuss making an application for a grant of probate or whether it is necessary to lodge an application with the Supreme Court please call one of our lawyers on 1300 038 223 or send us an email.