Often, when client's first approach us about a deceased estate, their first question is what is a grant of probate?
A Grant of Probate is a sealed court document which is proof that the executor of the Estate named in the Grant of Probate is entitled to deal with the assets of the deceased person. The Grant of Probate will include a copy of the Will and a list of all assets owned by the deceased, either solely or jointly with another party.
Why do you need it?
The New South Wales Court requires an executor of a Will to apply for a Grant of Probate in circumstances where a deceased person owned substantial assets independently. Most financial institutions require a Grant of Probate where the deceased bank account balances are in excess of $50,000, however each financial institution has their own requirements in relation to releasing assets.
A Grant of Probate will also be required to deal with real property held by the deceased if that property was held as "Tenants in Common". Once a Grant of Probate is obtained, the original Certificate of Title for the Property as well as a Transmission Application and a certified copy of the Grant must be provided to the Land Titles Office to transfer the property into the executors name. Once the property has been transferred the executor can then deal with the property, by either selling the property or transferring it to the beneficiaries.
How long does it take?
We generally estimate that it will take 6 months to obtain a Grant of Proabte. This includes:
- Obtaining the original Death Certificate from Births, Deaths and Marriages;
- Corresponding with asset and liability holders to obtain a valuation of the assets and liabilities as at the date of death;
- Preparing and completing Court documents to make an application for the Grant of Probate with the Supreme Court of New South Wales;
- Time for the New South Wales Supreme Court to process the application.
How much does it cost?
The Supreme Court of New South Wales charges a set fee for making an application for a Grant of Probate. The fee depends on the net value of the deceased's assets. From 1 July 2016 the fees are as follows:
What does the executor do after obtaining the Grant of Probate?
Once a Grant of Probate is obtained, the executor of the estate must attend to the following:
- pay any outstanding debts of the deceased. This may include Funeral expenses, and outstanding loans;
- Obtain a tax file number for the deceased estate, and lodge a tax return for the estate if required;
- Distribute the estate in accordance with the Grant of Probate, this may include selling or transferring any real property, selling or transferring shares, and closing and distributing bank accounts.
An executor is required to keep accounts of all the deceased's assets, and keep the deceased's assets separate from their own personal assets.
Will I always need to obtain a Grant of Probate?
There are circumstances where a Grant of Probate is not required. These include:
- Where the deceased died without independently owning any property and only had a small amount in their bank accounts. You should talk with the deceased's financial institution to find out whether they will release the deceased's assets without a Grant of Probate; or
- Where a spouse or close family member has died and all assets were held jointly with the remaining spouse.
Who can help?
This article was written by one of our solicitors Hamish Williams, who is one of our Estate solicitors. He can assist you if you have been appointed as an executor under a deceased person's will, or if you need advise about an estate. Make an appointment to see him today, the first half hour appointment is free and he will be able to tell you whether he can help.