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Probate Lawyers: Your Guide to Wills and Estates in Australia
In Australia, probate laws require the executor of a person’s Will to have it validated by the Supreme Court so it can be proven and probate granted if necessary. Once this occurs, the executor receives authority via a legal document called a Grant of Probate to administer the estate and manage the release of the deceased person’s debts and assets.
If you’re an executor of a Will and are unsure about the probate process, this guide explains the essential role of Estate Lawyers. A probate lawyer can help you navigate the complex legal process of settling an estate, from applying for a Grant of Probate to handling Will Disputes.
The Grant of Probate
A Grant of Probate is a legal document giving the executor the authority to manage the estate in line with the deceased person’s wishes as written in their Will. The executor of a deceased estate can show a Grant of Probate to a financial institution that holds assets or liabilities of the estate and require them to transfer the assets or monies to the executor.
Is Probate Always Necessary?
Depending on the type, size, and value of the assets, it may not be legally necessary to obtain a Grant of Probate. Some asset holders can release small amounts of money without probate. However, for significant assets like real estate or large bank accounts, probate is almost always necessary. If probate is required, certain legal requirements must be adhered to during the process.
Probate and the Executor of a Person’s Will
An executor of a person’s will is chosen by the will-maker. The executor can be anyone from a family member to a friend, a probate lawyer, the Public Trustee or any person the will-maker chooses to manage their will and affairs.
Once a grant of probate has been approved by the NSW Supreme Court, management of the assets and liabilities in the deceased estate can be legally transferred to the executor. In NSW, the will and the Grant of Probate are public documents stored at the Supreme Court in Sydney. By using the expert services of probate lawyers, the executor can solve any issues with probate, the families, disputes and the dispersal of the estate.
How to Apply For Probate: An Overview
Applying for a Grant of Probate involves strict legal requirements that can vary between states. As an example, in NSW, the process involves these key steps:
- Publish Notice of Intention: Executors must advertise a notice of their intention to apply for a Grant of Probate. In NSW, this is published on the NSW Online Registry.
- Wait For 14 Days: The executor must wait 14 days after the notice is published before they can file their application.
- File the Summons For Probate: This is the formal application, which includes the original Will, the death certificate, and details about the estate’s assets and liabilities.
Executors often find the probate application process challenging without the advice of a probate lawyer. Engaging an expert ensures forms are filed correctly and avoids costly delays.
The Executor's Responsibilities After Probate is Granted
After Executors obtain probate, they must execute the Will and take responsibility for the following:
- Obtain an original death certificate from the Registry of Births, Deaths and Marriages.
- Arrange for the person’s funeral.
- Determine the deceased estate’s assets and debts and assess their value.
- Pay the deceased estate debts, including income tax and funeral costs.
- Distribute the remaining assets in line with the terms of the Will.
Administering an estate can include winding up the deceased’s bank accounts, superannuation funds, and/or selling shares or other assets.
When Assets Are Held in Other States: Reseal of Probate
A problem may occur if there are assets owned by the deceased located in states or countries other than where probate was granted. The Supreme Court of one state only has jurisdiction over the assets in that state.
If you are the executor in charge of distributing a deceased’s assets located in one or more other states or countries, you must apply for a “Reseal of Probate” in the supreme court of the state or country in which the other assets are held. This validates your original grant, giving you legal authority there.
Navigating Will Disputes and Estate Litigation
Disputes can arise even with a valid Will. These conflicts often focus on two key areas:
- Will Disputes: These challenge the validity of the Will itself. Common grounds include claims of undue influence, fraud, or that the person lacked the mental capacity to make a Will.
- Estate Disputes (Family Provision Claims): These occur when an eligible person (like a spouse or child) feels they have not been adequately provided for in the Will. They are not challenging the Will’s validity but are asking the court for a different provision from the estate.
Understanding how to contest a will or defend against a claim requires expert legal advice, as strict time limits apply.
Need a Sydney Probate Lawyer?
If you’re searching for ‘the best probate lawyers near me’, don’t hesitate to call one of our probate lawyers at the NSW Wills & Estates Disputes Helpline if you have concerns or queries regarding probate matters. Estate lawyers are available to answer any questions you may have and provide you with the support you need.
Contact our team at the NSW Wills & Estates Disputes Helpline here or call us on 1300 679 222 to speak to a probate lawyer.
Frequently Asked
Questions
Who can contest a will in New South Wales?
In New South Wales, an “eligible person” as defined under the Succession Act 2006 (NSW) (see list above) can make a family provision claim if they believe they haven’t been adequately provided for. Separately, any person with a legitimate financial interest in the estate (like potential beneficiaries under a prior will or next of kin if the will is invalid) can challenge the validity of the will itself based on grounds like lack of capacity, undue influence, or fraud.
When to contest a will in NSW? What are the time limits?
This is extremely important. For family provision claims in NSW, you generally must file your application with the Court within 12 months from the date of death of the deceased. While the original content mentions 6 months from probate for contesting validity (e.g., via a Caveat if you believe the will is invalid due to issues like fraud before probate is granted), the ‘12-months from the date of death rule’ is critical for family provision claims. The Court can grant an extension in limited circumstances, but it’s difficult. It’s crucial to seek legal advice urgently due to these strict time limits.
How to contest a will in NSW?
The process of contesting a will in New South Wales, Australia, typically involves first seeking legal advice to understand your rights and the strength of your claim. For a family provision claim, this may lead to negotiations, mediation, and if necessary, filing a Summons in the Supreme Court. For challenges to a will’s validity, it may involve filing a Caveat in the Probate registry. Our lawyers will assist you throughout the entire process and can represent you in court.
What to expect when contesting a will?
When contesting a will, it’s important to be aware that the process can be complex, emotionally draining, and time-consuming. It’s also important to understand that the outcome is not guaranteed. However, with the help of our experienced dispute lawyers, you can expect clear and honest advice, comprehensive representation, and a commitment to achieving a fair resolution for your inheritance dispute.
How much does it cost to contest a will in NSW? Is "No-Win No-Fee" available?
Your initial consultation with the NSW Wills & Estates Helpline is free and confidential. If you decide to proceed, we will provide you with a clear costs agreement explaining our fees. For many will contest and family provision claims, we may offer a “No-Win No-Fee” arrangement (conditions apply), meaning you generally only pay our legal fees if your claim is successful. We will discuss this transparently with you.
NSW Wills & Estates Helpline can be contacted on 1300 679 222. Our helpline reps are well versed in all things related to Will & Estate disputes. If there is an issue we can’t answer over the phone, we have access to a mountain of resources so that we can call you back within the day to provide answers.
Due to time differences across states, we recommend leaving a voicemail if your call is not answered. We promise to return your call within the day taking note of time differences.
Our phone helpline is manned Monday to Friday, 8.30am – 5.00pm (AEST). Our Facebook social media page is manned 7 days a week and we respond to direct messages quickly. In fact, most of our enquiries come via Facebook private chat.
