Do I need to obtain Probate in NSW?
There are legal and practical considerations which will determine whether you as the executor need to obtain Probate.
Many asset holders (such as the Department of Lands, Aged Care Facility or Share Registry) will not release or transfer the assets of the estate until a Grant of Probate is obtained and in these circumstances the executor will have no choice but to obtain Probate.
If the deceased owned only joint assets, then Probate is not required to transfer those assets, for at law, those assets pass to the surviving joint tenant at the moment of death.
In circumstances where the estate comprises of only of a few assets of small value, it is common for the asset holder to dispense with the requirement of Probate provided that the executor agrees to indemnify the asset holder for any claim made by, creditors, beneficiaries or any other executor. An executor may choose to do so to avoid the need to apply for the Grant of Probate in NSW.
By obtaining Probate, and following the procedure set out in the Probate and Administration Act (NSW), the executor gains two very important advantageous:
Authority to deal with assets: Section 44 of the Probate and Administration Act (NSW) provides that upon the Grant of Probate of the Will, all property of the deceased (both real estate and personal property) within NSW, shall as from the date of death be vested in the executor named in Probate. It follows that unless Probate is obtained, the executor is not legally authorised to deal with those assets and runs the risk of being held personally liable for intermeddling with the estate assets if a later Will is discovered.
Protection from claims: Following the Grant of Probate being obtained, Probate Sydney (and if instructed to do so) will publish a notice in the newspaper that the executor intends to distribute the assets of the estate and pay only those creditors who have given notice. Provided the executor has waited at least 30 days to distribute the estate from the date of publication of notice, and at least 6 months has elapsed since the date of death, then the executor may then pay the creditors and distribute the estate to the beneficiaries.
If a creditor or beneficiary (including a person seeking to challenge the Will) later makes a claim on the estate, the executor can refer to the Grant of Probate and publication of notice in which case the executor will be fully protected from the claim (and the creditor or beneficiary must then seek to pursue the other creditors / beneficiaries). In these circumstances the executor will be protected from any claims.
Unless the Grant of Probate is obtained and requisite notice published the executor may be held personally liable for any dealings or distributions made in relation to the estate, and even if these dealings were made honestly and with good intentions.
To get started with the application simply complete your details by clicking here, or contact us on 1300 4 PROBATE (1300 477 622).
You may also be interested in reading:
- Probate Fees and Costs.
- How long does Probate take?
- Probate NSW
- Your role as executor.
- Do I need a solicitor if I use Probate Sydney?
- What is Probate?
- Frequently asked questions Probate.
- Call us Now: (1300 4 PROBATE) 1300 477 622
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