Probate
Wills & Estate Planning
Probate
Probate is the legal process where a Will is ‘proven’ in court to be the original and valid document of the deceased.
The probate process in NSW works when a court order is issued and the Supreme Court confirms the validity of a Will, the death of the person who made the Will, and the authority of the appointed executor to administer the estate.
A valid Will must be in writing and signed by the person who has passed away, or by someone acting under the direction of that person.
The signing of the Will must be witnessed by at least two people who attest and sign the document.
What Is Probate?
The probate process can take time and includes many steps.
A Grant of Probate is a document that consists of a cover page, a copy of the deceased person’s Will and an inventory of the deceased person’s personal property.
This grants the executor of the Will with the power to deal with the assets and liabilities of the deceased.
Applying for a Grant of Probate can be a challenging time in your life. There are many complexities in this process, including when there is contested probate. This occurs when there is reason to question the validity of the Will.
At Burgess Thomson we understand this process and can assist you in the deceased estate probate process as well as administering and distributing the estate.
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How Burgess Thomson Can Help
Burgess Thomson are the premiere probate lawyers in Newcastle.
Our team understands the probate process and can help to steer you in the right direction for managing these complex legal affairs.
So, let us help you by:
- Writing a valid Will
- Appointing and advising executors and trustees
- Applying for probate of the Will in the Supreme Court
- Navigating through the probate process
- Dealing with intestacy
- Identifying estate assets and liabilities
- Obtaining valuations of estate property
- Contesting Wills and defending estate litigation
We also provide help with applying for Letters of Administration. Typically, this will occur when a person passes away without leaving a Will. However, this may occur if a Will is deemed invalid or cannot be located.
A Letter of Administration is a court order in which the person who is granted administration can begin distributing a deceased person’s estate.
Our probate lawyers are based in Newcastle and available to help you with Wills and estate planning.
Why Us?
Burgess Thomson offers over 60 years of combined legal experience. Our team is proud to offer probate services that are tailored to your unique situation.
Our lawyers, who are based in Newcastle and the wider Hunter region, are recognised in their respective fields, including:
- Probate
- Wills and estate planning
- Deceased estates
- Business and commercial law
- Property law and conveyancing
We offer the highest standards of quality legal advice mixed with outstanding care and support for our clients.
Common Questions & Answers
You may be required to provide a Grant of Probate to various organisations before they give you assets which they held for the deceased person. Examples where a Grant of Probate will likely be required are when the deceased owned a house or land, held bank accounts with a substantial amount, owned substantial shareholdings or owned substantial superannuation. A Grant of Probate will not generally be required where there are insufficient assets to justify a grant of where all assets are owned in joint names, for example, between a married couple.
An Informal Will is a Will that does not strictly meet the requirements of a valid will. This could be because, the Will was only witnessed by one person or was partially damaged. An Informal Will could also be an unsigned note made by a patient in hospital, a note on an envelope containing money or a signed note in a person diary. An Informal Will could also be a document created and stored on an iPhone or computer. The court can dispense with the formal requirements of a Will if the document appears to contain the wishes of how the deceased person wanted to distribute their assets and the court is satisfied that the person intended that the document form his or her Will. The court may also consider the nature in which the document was made or signed. If the court accepts an Informal Will as a valid Will, then it will override any prior Wills made by the deceased. The court will then issue a Grant of Probate to the Executors to distribute the estate in accordance with the Informal Will.
A person who is appointed an Executor in the Will is entitled to apply for a Grant of Probate. If you are a substitute Executor in a Will, you will not be able to apply for a Grant of Probate unless the first named Executor becomes unable to act as Executor or renounces probate. If an Executor fails to apply for a Grant of Probate within six months of the death of the deceased person, then a beneficiary or another interested party may apply for a Grant of Probate.
You cannot be forced to act as an Executor under a Will. You can renounce your executorship and allow another appointed Executor or the substitute Executor to act in your place. Renouncing probate means you are giving up your right to act as Executor. If you wish to renounce probate, it is best to do so as soon as possible before there has been any administration of the estate. A Renunciation of Probate needs to be witnessed and lodged with the Supreme Court. You do not have to provide reasons as to why you do not wish to be an Executor. However, once an Executor has accepted the role and a Grant of Probate has been made, generally the Executor cannot change their mind. If for some reason and Executor cannot continue acting, an application must be made to the court setting out the reasons why they cannot continue and any impact this may have on the administration of the estate.
Generally, a Grant of Probate will only have effect in the jurisdiction in which it was issued. For example, if probate is granted in NSW but the deceased person held significant assets in another state, the Executor would need to have the Grant of Probate given force in the other state. This process is known as resealing.
It generally takes about four weeks between the date the Court receives the documents and the date probate is granted.
