Probate & Estate Administration

If your family member or friend has passed away and you need to arrange their affairs – for example, sell their apartment or house , close their bank accounts or sell their shares – you will most likely need ‘probate’ or ‘letters of administration’.   

Probate

A grant of probate of a will is a document issued by the Supreme Court that gives the executor named in the will the right to deal with the assets of the deceased person according to the terms of the will. This power is often needed to close bank accounts, to sell shares or property. Without probate, a house or apartment of a deceased person cannot be sold.
 

Grants of probate can be made in common or solemn form:

  • Common form grants are much more common and are the relevant choice where there is a valid will and no contest as to its application.
  • Solemn form grants are contested grants or grants where an applicant envisages that there may in the future be a contest or where there are doubts as to the validity of a will.

Letters of Administration

If there is no will, then you need to apply for letters of administration. If there is a will, but the executor under the will has already passed away, then you need to apply for letters of administration with the will annexed.

Letters of administration give the person appointed as administrator the same rights and powers as an executor under a will.

If the deceased died ‘intestate’ (without a will), generally their spouse or next of kin (or more than one eligible person) can apply for letters of administration. Issues arise if there is no next of kin in the jurisdiction (i.e. in New South Wales). If you are in this situation, please call us to discuss who would be the most appropriate person to apply for letters of administration.

If there is no will, the usual position is that the person entitled to a grant of letters of administration with the will annexed is the person with the greatest interest under the will.

Estate Administration

The person who is or will be appointed executor or administer, must also administer the state.

Estate administration is the work of administering a deceased estate. A simple estate administration generally involves the tasks of:

  • locating the assets of the deceased
  • converting these assets into cash or transferring property into the name of beneficiaries
  • paying the deceased’s liabilities and tax, and
  • distributing the remainder to the beneficiaries.

Estate administration can also be more complex. For example:

  • the full extent of the deceased’s assets is not known, and assets have to be located
  • the assets are not in the deceased’s name
  • the deceased owned assets overseas and overseas probate is required
  • the beneficiaries want to have the estate distributed in different portions
  • jointly appointed executor cannot agree on the estate administration process
  • shares have to be sold in other countries (e.g. USA where so called Medallions signature is required)
  • gifts fail because the will/estate plan was not updated frequently
  • the terms of the will are unclear and require interpretation
  • there is a dispute about whether the deceased had capacity when signing the will
  • the deceased left potentially ‘informal’ wills
  • there might be somewhere children of the deceased form a previous relationship
  • the beneficiaries cannot be located

Probate with Asquith Legal- A new approach

Asquith Legal uses a new approach to the probates process and  makes the probate process as easy as possible for everyone involved. Our probate lawyers use SETTIFY PROBATE, a sophisticated client engagement tool that enables us to provide services at highly competitive rates.

When we provide you with a fixed fee for the probate application, we take into account that, while the estate might be of significant value, the application process is straightforward

We also take into account the following when providing discounted quotes:

  • whether the will is simple and unambiguous
  • whether the estate structure is simple
  • 2 or few numbers of executors
  • Other circumstances that make the application process straightforward

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Frequently asked questions

Probate & Estate Administration

Whether you need probate will depend on what kind of assets the deceased owned. If the deceased had no house or apartment (no real property) and only little money in his or her bank account, then it is possible that no probate is required.

If there is no will, then you need to apply for ‘letters of administration’. If there is a will but the executer under the will has already passed away, then you need to apply for letters of administration with the will annexed.

If the deceased died ‘intestate’, (without a will), generally the next of kin or the spouse or one or more of the next of kin can apply for letters of administration. Issues arise if there is no next of kin in the jurisdiction (i.e. in New South Wales).

If there is not will, the usual position is that the person entitled to a grant of Letters of Administration with the will annexed is the person with the greatest interest under the will.

In New South Wales, probate fees consist of the following:

1. NSW Supreme Court Filing Fees
The filing fees depend on the value of the estate. 

2. NSW Solicitor Fees
The Solicitor fees also depend on the value of the estate. The scale of fees is regulated in Schedule 3 of the Legal Profession Uniform Law Application Regulation 2015.

3. Publication costs
Before you can apply for probate, you need to lodge an intended application for probate notice with the Supreme Court. Also, before you can distribute the estate without being personally liable for any unknown claims against the estate, you need to lode a notice of intended distribution with the Supreme Court. The lodgement for each notice are currently $48.00.

Before you can lodge an application for probate or letters of administration, you must lodge a notice of intended application for a grant with the Supreme Court Registry. The purpose of the notice are:

  • The published notice allows the deceased’s creditors an opportunity to make a claim against the estate by contacting the person who is intending to apply for the grant.
  • Relatives of the deceased may also be able to make a family provision claim against the personal representative 
  • A notice of intended application also gives notice to anybody that may intend to challenge the validity of the will or who may have knowledge of a later or alternate will.

The required forms and documents are:

• Summons for probate, administration, administration with the will annexed 
• Affidavit of executor
• Original will and any codicil/s (and English translations if applicable)
• Summons
• Draft Grant 
• two sets of supporting documents each stapled on the left hand side accompanied by a stamped, self-addressed A4 envelope
• List of parties if more than two
• Other evidence as required (eg. evidence that deceased was not in a de-facto relationship; circumstances of death)

Generally, a ‘grant’ (probate or letters of administration), is only effective in the jurisdiction in which it is made. This means that a foreign grant will not confer power on the grantee in respect of assets in this jurisdiction – that is, a grant made in Queensland or Victoria over assets in NSW will not confer power on the grantee in respect of assets in NSW.

However, legislation in each state and territory ensures that grants made in other Australian jurisdictions can be resealed by the Supreme Court of the Supreme Court in that state or territory. Once resealed, it is effective as if it were an original grant.

Essentially, a foreign grant confers no powers on theperson receiving the grant in respect of assets in NSW. This generally means thatyou will need to obtain a grant within this jurisdiction. A reseal in NSW of a grant of probate or letters of administration from another British dominion country operates as though a fresh grant has been made in this jurisdiction.

The applicant must be the person (or all of the people) named in the foreign grant or someone authorised by them via a sufficient power of attorney. An executor by representation (insert explanation) may also apply. An application can be made by a single executor although you can obtain a grant to a single executor reserving leave to the other executors to come in. The executor needs merely to be named as such in the grant and does not need to be mentioned in the relevant will.

Once an interstate or foreign grant has been resealed, it is effective as if it were an original grant made by the Supreme Court. This overcomes the need for the personal representative appointed under the interstate or foreign grant to obtain an original grant from the other jurisdiction.

If the grant is not made in a country of “Her Majesty’s dominions” or in one of the Australian states and territories, then it cannot be resealed in Australia. In this case, new probate or letters of administration must be obtained from the Supreme Court. Asquith Legal has signifcant experience in obtaining overseas grants of probate and international estate administration. 

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