This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, Criminal Law, Family Law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

When Is A Grant Of Probate Required?


The executor of an estate is responsible for collecting the deceased’s assets, paying any liabilities that the deceased may have had and administering the estate in accordance with the will. Where a deceased person has left assets in New South Wales, a grant of Probate from the Supreme Court of New South Wales is required in order to deal with those assets and administer the deceased person’s estate.

What Is Probate?

A grant of Probate is a document which authorises the executor to deal with the deceased’s assets and in most cases institutions (such as banks) and persons who hold the deceased’s assets will require a grant of Probate to be obtained before they allow the executor access to those assets. The Supreme Court of New South Wales will only make a grant if the deceased left assets in New South Wales. If the deceased lived in another state but left assets in New South Wales then you may apply for a reseal of the original grant that was obtained in the deceased’s home state.

In most cases where a deceased person has left assets in New South Wales a grant of Probate will be necessary. However, a grant is not necessary in every case. Whether a grant is necessary will depend on the size, type and nature of the deceased’s assets. For example, where the deceased has not left any real estate and only had funds in a financial institution, depending on the amount of funds, the financial institution may not require a grant of Probate to release the funds. Instead they may simply require proof of death of the deceased and identification documents from the person who is enquiring. If you are unsure whether the financial institution requires a grant of Probate you should make enquiries to see what criteria needs to be met.

Is A Grant Of Probate Always Required?

In some circumstances even if the deceased died having owned real estate, a grant of Probate may still not be necessary. For example, where the deceased died having owned property with another person as a joint tenant, then the deceased’s share of the property does not form part of their estate. Instead, the deceased’s share of the property automatically passes to the surviving joint tenant.

It is very important that you make reasonable enquiries to determine what assets the deceased owned at the date of death so that you can make an informed decision about whether a grant of Probate is required. If you are unsure about the process please contact Armstrong Legal on 1300 038 223 or send us an email and we can assist you with making enquiries and applying for a grant of Probate if required.

WHERE TO NEXT?

Have you been left out of a Will or treated unfairly? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

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