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Probate – What is it?

Many people have heard of the word probate but are unsure of what it really means. In short, a grant of probate is issued by a Court following the death of a person and relates to the way the deceased’s persons assets may be distributed.

A will appoints a person as an Executor of the estate. It is then the Executor’s responsibility to ensure that the assets of the deceased are distributed to beneficiaries in accordance with the will. It is therefore the Executor’s responsibility to apply for a Grant of Probate. Typically this is done with the assistance of a lawyer.

The information an Executor needs to gather in order to apply to the Court for a Grant of Probate includes:

  1. Original death certificate;
  2. Original will;
  3. A list of all the assets of the deceased, such as any real property, bank accounts, shares, motor vehicles and possibly a bond held by a nursing home or similar institution.

Application is then made to the Court, in NSW it is to the Supreme Court – Equity Division, for a Grant of Probate. An affidavit of executor forms part of that application which attaches an inventory of the assets of the deceased.

Once approved by the Court, a Grant of Probate is issued. A Notice of Intended Distribution is then normally published and after the specified time, the Executor is free to distribute the assets of the estate. Most institutions and authorities require a certified copy of a grant of probate before they will release the assets. All institutions have different requirements.

In some cases, a Grant of Probate is not required. This is usually in the case of estates with assets with less than $30,000 value and where the relevant authority does not require a grant of probate to deal with the asset.

All cases are different and we hope this summary of the area is of assistance in shedding light on what probate means. If you would like assistance with this area of law, please contact us here at ClickLaw by phone or email.

Carolyn Morley – Senior Lawyer – ClickLaw