Dealing with the loss of a loved one is a distressing time
Let Bainbridge Legal help you navigate the legal minefield in obtaining probate. We can act on your behalf contacting and notifying banks, building societies, credit unions and insurance companies of the date of death and requesting full details of all accounts, shares and policies. We can take carriage of the application to the Supreme Court for a grant of probate, which is an order declaring the will valid and that the executor has the lawful right to administer the estate. We will ensure that the required probate notifications are published in the local newspaper.
We will prepare all required probate documents including executor's affidavit, inventory of assets and summons for probate. Once the grant of probate has been obtained from the Supreme Court, we will make the necessary arrangements for advertisement in the local newspaper regarding distribution of the estate. If necessary, we will prepare a transmission application or notice of death and lodge the same at the Land and Property Information along with the title deed to transfer real property from the deceased's name.
Once the estate debts have been acquitted, we reimburse the executors for any personal expenses that have been incurred in administering the estate before attending to the final distribution of funds in accordance with the will, including payment of our professional costs out of the estate. A letter will be sent to each of the beneficiaries under the will requesting them to attend our office to receive their distribution cheque or, alternatively, we can deposit the funds directly in a nominated bank account.
There are established legal processes in place for when a person dies so that his or her estate can be distributed and administered in accordance with the deceased person’s wishes and the law. If you are an executor or potential beneficiary of the estate, it is vitally important that you obtain the services of an experienced probate solicitor to assist you.
As an executor or trustee of a deceased estate, you have the highest legal obligations that apply to the way you perform that role. You must ensure that the beneficiaries of the estate receive distributions and benefits of the estate in a lawful and transparent manner. Bainbridge Legal have a wealth of experience in probate matters and can give you sound advice on obtaining a grant of probate in a timely and efficient way.
If the deceased person dies with a Will, it is usually necessary to obtain a grant of probate of the will from the Supreme Court so that the executor of the will can deal with the assets and liabilities of the estate. If the deceased person died without a will, a grant of letters of administration may be required, and the assets will be distributed in accordance with the rules of intestacy.
Obtaining a grant of probate
If a person has a valid Legal Will when they die, the Supreme Court of NSW will generally grant Probate to the person’s executor to manage his or her estate. Bainbridge Legal can assist with the various steps that are usually sought by those close to the deceased person including:
- Preparing the background information and original documents required for an application to the Court
- Transferring real estate and other assets to the beneficiaries
- Gaining access to bank accounts
- Pursuing claims and receiving compensation on behalf of the deceased person
Probate describes the legal authority granted to the executor by the Supreme Court. When the Supreme Court issues a grant of probate, the executor has the legal authority based on a valid will and he or she may administer the estate according to probate law and distribute assets to the beneficiaries named in the will.
Complexities can arise with all of the above processes. The Probate Lawyer team at Bainbridge Legal will assist you with any difficulties that arise.
Who is responsible for legal costs?
An executor can generally have the legal costs of probate or letters of administration paid from the assets of the estate. Our probate lawyers are available to discuss your circumstances and assist you with managing any costs that apply.
If a person dies without a valid Will then the person is deemed to have died intestate and an application must be made to the Court for a grant of Letters of Administration.
In intestacy matters, there are established laws that determine who will receive the estate and in what proportions. An appropriate person must apply for letters of administration from the Supreme Court, which will allow the assets and liabilities of the estate to be dealt with. In the absence of a Legal Will, this process can be challenging and we strongly recommend that you obtain advice from a probate lawyer before you embark on the process.
Once Letters of Administration are granted by the Court the person who made the application, known as an administrator, is authorised to administer the deceased's estate and distribute assets.
Is probate always necessary?
It is usually (but not always) necessary to obtain a grant of probate or letters of administration to deal with a deceased estate.
Issues that are relevant to whether a grant is necessary include but are not limited to:
- The type of property owned by the deceased, how it was held, whether it was encumbered
- The value of the property
- The location of the property
- Institutional requirements for a grant – these can vary markedly between the various banks and superannuation funds and other relevant entities
- Creditors of the deceased and whether the deceased was entitled to moneys in some other way
The circumstances vary for each estate. Bearing in mind the legal obligations of executors, you should seek legal advice from an experienced probate lawyer about your situation before deciding whether it is necessary to obtain a grant. Our lawyers have experience with wills, probate and estate litigation and are available to help you assess the key issues and inform you of the various legal options available to you.