Navigating the Probate process in NSW: a Comprehensive Guide by Abbotts and Co Lawyers

Dealing with the loss of a loved one is undoubtedly one of the most challenging experiences in this life. In the pain of your grief, the added responsibility of managing their estate can feel incredibly overwhelming. 

When someone has passed away the most common thing we get asked about is β€˜Probate’ - what is it all about, and how to obtain it. If you feel alone in navigating what can be a complicated and confusing process, you need not be. At Abbotts and Co. Lawyers, we are here to guide you through every step of obtaining Probate in New South Wales (NSW) with empathy and expertise.

What is Probate, and why Probate is required?

Probate is a legal document granted by the Supreme Court of NSW that authorises an executor to manage a deceased person's estate according to their Will. Essentially, it is the Court's process of reviewing a will to ensure that it is valid, and then providing a β€˜stamp of approval’ to the person named as the executor. 

In most cases obtaining Probate is a crucial first step in administering an estate. It ensures that the original will has been located, checked over, and meets the necessary requirements of being a proper Will.  

Without Probate it can be unclear who is legally acting on behalf of the deceased person, and someone attempting to do so may be taking on personal risk. By obtaining the Court’s permission through Probate, an executor can go and collect the deceased’s assets, pay off any debts, distribute funds to the beneficiaries, and ensure that the wishes outlined in the Will are followed. 

Is Probate mandatory in NSW?

Not all estates require a grant of Probate from the Court.  Whether Probate is necessary depends mainly on the nature and value of the deceased's assets. For example, if the Deceased's assets are jointly held or are of low value, Probate may not be required. However, for estates that include significant assets such as real estate or substantial bank accounts, Probate is usually necessary.

In a practical sense if there are significant funds in a bank account or other investment, those funds are not going to be released unless the bank is satisfied that they are releasing to the right person, and it is Probate that provides them with this security. 

How do I obtain a grant of Probate in NSW?

  1. Locate the original Will: The first step in obtaining Probate is to locate the Deceased's original Will. This document should outline who the Deceased has appointed as their executor(s).

  2. Prepare necessary documents: Once the original Will is located the executor must gather and prepare the necessary legal documents required for the Probate application. This includes the death certificate and a comprehensive list of the Deceased's assets and liabilities. The executor will also need to swear that they believe it to be the Deceased’s signature on the will, and confirm other important details. 

  3. Lodge the application: The executor must lodge the completed Probate application with the Supreme Court of NSW. This involves paying a filing fee and responding to any additional requirements (or Requisitions) which the Court may have. 

  4. Court approval: The time it takes for the Court to process the probate application can vary. Typically, it takes 2-3 months for the Court to grant Probate, provided all documentation is in order and there are no disputes.

Obtaining Probate is a formal Court process. If it is not completed correctly the Court will return the application and ask you to try again. As such it is best to obtain the advice and assistance of a solicitor who is familiar with the in’s and out’s of what the Court is looking for, and can efficiently get the estate moving along to the next stage.  

At Abbotts & Co Lawyers we can help to take away the confusion, anxiety and unnecessary delays which often occurs when an executor attempts to go this path alone. 

How much does Probate cost in NSW?

Understanding the costs associated with obtaining Probate is essential for planning and managing the administration of a deceased estate. In NSW, Probate costs will include both the Courts filing fee and your solicitor's professional fees. 

In relation to the Courts filing fees, these are calculated on the gross value of the estate assets located using a bracket system. The current fee arrangement is available on the Supreme Court’s Website. Filing fees & Other Fees (nsw.gov.au). Please note that the fee structure is reviewed each financial year. 

A solicitor’s professional fees in assisting you to obtain Probate is regulated under 

Schedule 3 of the Legal Profession Uniform Law Application Regulations 2015 (see Part 5, clause 26). The regulation sets out a scaled fee arrangement based on the gross value of the estate assets in NSW. 

At Abbotts & Co Lawyers we strive to take the guesswork out of legal fees and provide our client’s with peace of mind. As much as possible we will provide a simple to understand fixed fee billing arrangement.

If you would like to receive further information about the fees involved in obtaining probate, or wish to receive a fixed free quote for us to assist you in that process, we welcome you to contact us for an obligation-free chat.

Important things to consider about obtaining Probate in NSW

Probate timeframes in NSW. 

The time frame for obtaining Probate will vary depending on the unique characteristics of the estate and the current workload before the Court. In general terms you should expect to wait around 2-3 months from the date that the Probate application is lodged with the Court. Securing Probate can of course take much longer if unexpected complications or disputes arise. 

Applying for Probate without a lawyer.

While applying for Probate without a lawyer is possible, the process can be complex and time-consuming. Professional legal assistance can ensure that all documents are correctly prepared and submitted, reducing the risk of errors, delays and additional expense. 

Whether somebody contests a Will.

If the validity of a Will is contested the Probate application can be significantly delayed, or in some cases come to a halt until the issues in dispute are resolved.  This may involve legal proceedings to resolve disputes concerning the authenticity of a signature on a will, questions about lost or competing wills, and other concerns relating to the deceased’s capacity to make a will. Not only will such disputes prolong the process but they will also result in additional legal fees. 

Dealing with assets in multiple states.

A grant of Probate obtained from the Supreme Court of New South Wales will only apply to assets within NSW. In cases where the Deceased held assets in different Australian states the NSW grant of Probate will need to be β€˜resealed’ in the other states where assets are located. This process provides the executor the legal authority to manage and distribute all of the deceased’s assets, regardless of location. 

Please note that a separate β€˜resealing’ process needs to occur in every state where assets are held and additional fees will apply for every separate resealing process required. 

What happens if someone dies without a Will?

In cases where the Deceased did not leave behind a Will (known as dying intestate), a different process is followed. Rather than a named executor applying for Probate, an eligible person can apply for a grant of Letters of Administration. This grant gives the appointed administrator the authority to manage and distribute the Deceased's estate according to the intestacy rules set out by law.

Without experience applying for Letters of Administration can become a complex and lengthy process. Should a loved one have passed without leaving a Will for guidance it is strongly recommended that legal advice be obtained so that the estate can be progressed as efficiently as possible. 

Why choose Abbotts and Co Lawyers for Probate assistance?

At Abbotts & Co, we are committed to providing compassionate and professional legal support during the most difficult of times. Led by principal solicitor Kieran Abbotts, our legal team bring years of experience in efficiently handling probate applications and complex estate matters. 

As every individual grieves in their way, we are  acutely aware that dealing with deceased estates involves the need for empathy, respectful support, and an appreciation for the unique emotional and personal factors which are involved in such sensitive matters. 

For us a Deceased estate is not another legal file, rather we regard it as a privilege to be able to assist in bringing about an individual's final wishes, and helping to construct their lasting legacy. 

In summary, here is why we believe we are the right choice to assist with your Probate application: 

  • Expertise and experience: Our team has extensive experience handling Probate applications and estate administration, ensuring that your loved one's estate is managed according to their wishes

  • Personalised service: We understand that every estate is unique and provide personalised legal services tailored to your specific circumstances and needs.

  • Cost-effective Probate Lawyers NSW: We are upfront and transparent about our fees.Through internal efficiencies and operating under a flexible and client focused model, we are able to pass on savings to our clients, ensuring that our fees are highly competitive and not a source of further stress and pain. 

  • Efficient process: We aim to make the Probate process as smooth and stress-free as possible. We will work alongside you and at your own pace, taking care of all the legal details so you can focus on healing and remembering your loved one. 

Navigating the Probate process can feel very challenging, but you don't have to do it alone. Being your friend in the law we are ready to provide our understanding and experienced shoulder of support to assist you every step of the way. 

Are you an Executor needing support with Probate? Contact Abbotts and Co Lawyers today.

At Abbotts & Co Lawyers, we are committed to helping our clients navigate the legal process during difficult times with care and compassion. If you are an executor and feeling lost or overwhelmed by the idea of managing an estate we encourage you to reach out to us. 

Contact us today to book an obligation-free consultation. Let us assist you in obtaining Probate,and administering an estate so that you can focus on your wellbeing and what matters most. 

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5 reasons why 'Dying Intestate’ can cause issues for loved ones you leave behind.