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The executor of an estate is responsible for collecting the deceased's assets, paying any debts and then distributing the assets to the beneficiaries. A grant of probate is a legal document that authorises an executor (or executors) to manage the estate of a deceased person in accordance with the provisions of the deceased's will. The executor can take the grant of probate to persons that currently have assets of the estate or that are debtors of the estate (such as banks and retirement villages that are holding bonds) and require them to transfer the assets or monies to the executor (or to such other persons as the executor may nominate in accordance with the will).
Uncontested applications for grants of probate are considered and determined in chambers by a registrar. Grants of probate made on an uncontested application are known as grants in common form.
The Supreme Court of New South Wales only has jurisdiction if the deceased left assets in New South Wales. A grant of probate will not be made if the deceased had no assets in New South Wales.
If a deceased person owned assets in more than one state or country it may be necessary to apply for a grant in each place where assets were located. However, if the deceased had assets in different states of Australia or in certain countries, you may apply for a resealing of the original grant.
Please refer to the Reseal Fact Sheet for further information.
Depending on the type, size and value of the assets located in New South Wales it may not be necessary to obtain a grant of probate in New South Wales. There is no statutory requirement to obtain probate in every case. Some asset holders will often release smaller amounts without the need for probate to be obtained.
Joint tenants and tenants-in-common
If assets of the deceased were jointly owned as joint tenants (that is where the co-owners did not own distinct portions of the property - no person has a separate share), if on the death of one of the joint owners (or tenants) the property automatically passes to the remaining joint tenant or tenants. There would be no need for a grant if all of the deceased's assets were held as joint tenants with someone that survived them.
If real estate is held solely in the name of the deceased or a share of real estate is owned by the deceased as tenants in common with someone else, a grant of probate will be required in order to deal with the asset. The certificate of title for real estate will show if the property was held as joint tenants or as tenants in common. The executor can contact the Land Titles Office to check this information.
Check with asset holder for criteria and requirements to release assets
If there is no real estate then you should consider approaching the asset holders (eg banks, superannuation funds, insurers) to determine if they will transfer the assets without a grant of probate being made. It may be possible to have the asset holder transfer the assets by showing them the original death certificate and will and signing a declaration of your entitlement and/or an indemnity in favour of the asset holder in case someone else subsequently makes a claim. This should be considered, particularly if the executor is the sole beneficiary under the will.
Different asset holders have different criteria and requirements for releasing assets. Note also that the proceeds of life insurance and superannuation generally do not form part of the estate. However, this will depend on the terms of the relevant policy. Despite this, sometimes the trustee will require a grant to be made or resealed before they determine who is entitled to the superannuation or insurance proceeds.
The Supreme Court Rules 1970, Part 78 Rule 16 govern the timeframe for lodging probate. If an application for probate is filed after 6 months from the date of death of the deceased, an explanation must be given to the court accounting for the delay. This can be done by either including an explanation in the affidavit of executor or lodging a separate Affidavit of Delay.
There is no prescribed or approved form for an Affidavit of Delay. If you are preparing a separate Affidavit of Delay adapt UCPR Form 40 and head it "Affidavit of Delay" and provide an explanation for the delay in the body of the affidavit.
Instituted and substituted executors
In the will the testator usually nominates who he or she would like to act as the executor or executors. If the will does not nominate an executor then it is not possible to apply for probate. In such cases a beneficiary under the will can apply for letters of administration with the will annexed. Sometimes the executor will nominate a first preference but may nominate an alternate person as executor in certain conditions, usually if the first choice has predeceased the testator, or is unable or unwilling to act. If the testator has nominated one or more persons as his or her first choice, and has then nominated an alternative person or persons, the first choice is known as the instituted executor or executors, and the alternative choice is the substitute executor or executors. If a substitute executor is applying it is important to check the terms of the will to verify that the conditions for the substituted appointment to take effect have been met. Unless the conditions have been met the substitute executor cannot apply for probate.
If the testator has nominated more than one instituted executor (or substitute executor) then generally the application will be made by all of the named executors unless one or more of them have died or have indicated that they do not want to apply for probate by renouncing probate (there is an approved form for renouncing probate). If the application is being made by fewer than all of the instituted (or substitute) executors, the affidavit in support will need to explain why the other executors are not applying (the death certificate of any predeceasing executors must be attached).
If the precondition for a substitute executor applying is that the instituted executor predeceased the testator, then a copy of the death certificate of that executor should be annexed to the affidavit of executor, or a reference to the case number of the probate application for that executor should be made in the affidavit of executor.
If the name of an executor in the will is different from the current or real name of an executor applying for probate this will need to be explained in the affidavit of executor. If, for example, the executor has subsequently married, a copy of their marriage certificate must be annexed to the affidavit.
If the will nominates an executor without specifically naming them, for instance by appointing someone holding an office at the time of the executor's death, then the affidavit of executor will need to provide evidence establishing the applicant's entitlement to apply.
Marriage or divorce after execution of Will
If the testator marries or remarries after executing the will, this may revoke the will. The affidavit of executor includes a statement that the testator did not marry after the will was made. If this is not the case, you should seek legal advice in relation to whether the will has been revoked or not. Normally the only circumstance where a will is not revoked by a subsequent marriage is where the will is stated to have been made "in contemplation of marriage".
A divorce will also normally revoke the former spouse's entitlement under the will and their rights to be the executor of the will.
Renouncing or resigning as executor
An executor appointed under a will can renounce probate if they are unwilling to take on the role. If the renouncing executor is one of several instituted executors then the remaining instituted executors can apply. If the renouncing executor is the only surviving instituted executor, then the substitute executor(s) may be able to apply if the will provides that the substitution takes effect if the instituted executor(s) renounce probate or are unwilling to act. The approved form for renunciation is UCPR Form 123.
The Registry will accept a renunciation of probate before an application for probate has been filed. However, generally, the executor renouncing probate will give the form to an executor who does intend to apply for probate, and the form is filed with the application for probate.
If an executor has renounced probate this information is included in the notice of intention to apply for probate (published on the Online Registry). This information is included in the "qualification" field of the online notice of intended application for a grant of probate.
Being appointed as an executor is an important responsibility. An executor cannot renounce probate once a grant has been made, and cannot delegate his or her executorial duties (other than as noted below). As such, it is important for a person named as an executor to determine whether they are willing and able to fulfil the responsibilities of administering the estate before they apply for probate. The only way an executor can be removed after a grant has been made is if the Court makes an order revoking the grant of probate. Section 75A of the Probate and Administration Act does however permit an executor to delegate the executorial responsibilities to the NSW Trustee and Guardian or a trustee company (even after a grant has been made).
If there are several instituted executors named in the will the Court will check that the application is being made by all of the executors that are able and want to apply, ie other than those that have predeceased the deceased or that have renounced probate. There will, however, be circumstances where one or more of the executor(s) may be unwilling or unable to apply but is not prepared to, or is unable to formally renounce probate. In such circumstances there is provision under the rules (SCR Part 78 Rule 55) for a notice to be served on such executor(s) requiring them to apply for probate. If they do not comply with the notice, this allows the other executors to apply without that executor, or if the executor is the only executor, for a beneficiary to apply for letters of administration with the will annexed. If one of the executors is unable to apply or renounce for medical reasons then evidence will need to be provided. Similarly, if an executor is overseas or cannot be located when an application for a grant is being made, evidence about this must be provided. In such circumstances the application should be for a grant of probate that reserves the right of those non-applying executors to later apply for probate.
The original Will
You should check that you have the original will (and codicils, if applicable). The original will (and codicils) must be filed with the probate application and will be retained by the Court. To be valid a will or codicil must be in writing and signed by the testator and by two witnesses and be verified that the will is not a carbon or photocopy. If you cannot find the original will but have found a copy, or if the will is unsigned or has not been properly witnessed, it may still be possible to apply for probate. See further information below.
An unsigned and/or undated Will
If the will is undated, evidence will need to be provided as to when the will was executed. This will be particularly important if there is another will to establish which was the last-made will. An affidavit by an attesting witness, or from such other persons who may have relevant information as to the date the will was made, or narrowing down the possible range of dates when the will was made, should be provided.
An affidavit of an attesting witness will also be appropriate if there is any doubt as to the proper execution and witnessing of the will. If the will has any hand-written amendments that do not appear to have been initialled by the testator and the witnesses, an affidavit of attesting witness as to whether those amendments were made before the will was executed will normally be required. Affidavit evidence may also be required if it appears that other documents were attached to the will at some time and that those documents have subsequently been removed, or if the will has been torn or otherwise defaced since it was executed. See Supreme Court Rules Part 78 Division 3 Subdivision 3.
A codicil is a document that amends, rather than replaces, a previously executed will. If the testator has made a codicil, or codicils, to the will, the application for probate will be for probate of the will and the codicil(s). Amendments made by a codicil may add or revoke small provisions or may completely change the majority, or all, of the gifts under the will. A codicil may vary or replace the executors named in the original will.
Applying for Probate on a copy of a Will
If the original will cannot be found but there is a copy of a will which is believed to be the last will of the deceased then the executor named in the copy will may be able to apply for probate on the copy of the will. The actual copy of the will needs to be filed with the probate application.
Searches must be done to locate the original Will
The affidavit of executor will need to explain where the copy of the will was found and set out all the searches that have been made for the original will (of which the will is a copy) or any later will that the deceased may have made. Such searches must at least include searches through the deceased's personal papers and effects, searches at any solicitors the deceased may have used, any banks used by the deceased and the NSW Trustee and Guardian. If the copy shows that the original will was prepared by a solicitor then enquiries should be made with the relevant firm of solicitors to check that they do not have the original will, and as to what their usual practice was when wills were prepared for their clients (ie whether they normally held the originals in safe custody or gave the original to the client). If the will was last held by a solicitor then an affidavit by the solicitor or somebody in that solicitor's firm should be provided as to the searches that they have undertaken for the original will. If the evidence suggests that the original will was last in the possession of the deceased then there is a presumption that the deceased revoked the will by destroying the original will. To rebut this presumption, the application will need to be supported by evidence (which can be included in the affidavit of executor to the extent that the executor can provide this evidence) that goes to prove that the deceased did not intend to revoke the will. Such evidence can include conversations the deceased may have had in relation to his or her will, but could also include evidence as to there being no substantial change of circumstances since the will was originally made that may have led to an expectation that the deceased may have changed their will.
List those entitled under intestacy
The affidavit of executor will also need to set out who would be entitled under intestacy (ie if there was no will). If the people that would be entitled under intestacy are different from the beneficiaries under the copy will then it will be necessary to either obtain the consents of those persons who will be adversely affected if a grant of probate is made in relation to the copy will, or to prove that they have at least been served with notice of the application.
A limited grant
A grant of probate on a copy of a will is a limited grant. Although in most cases the original will is unlikely to be found the grant is limited until the original will is found and an application for a grant of probate of the original will is made. In the summons for probate (UCPR Form 111) this is to be included in the "relief claimed" section of the form:
Qualifications or limitations on the grant: Until the Original will is found and proved.
Similarly, this should appear on the draft grant of probate (UCPR Form 112) as the basis of grant:
Probate of a copy of the will: Limited until the original will is found and proved.
In the affidavit of executor the executor should include an additional paragraph giving an undertaking to produce the original will to the Court if and when it is found and to apply for a grant of probate of the original will if the estate has not been fully administered.
Applying for Probate of an informal Will
It is a formal requirement of a will that it be signed by the testator and that it be witnessed by two witnesses who both saw the testator sign. Nevertheless the Court may grant probate in relation to a will that does not meet these formal requirements if it can be satisfied that the document was intended by the deceased to be their will. If an application for probate is being made in relation to an informal will, the summons (UCPR Form 111) must include an additional claim for an order (in addition to the grant of probate) that the Court make a declaration under Section 8 of the Succession Act that the informal will constituted the last will of the deceased.
The affidavit of executor will need to disclose if there is an earlier will that would take effect if the informal will is held not to be operative. If there is no earlier will that would take effect, the affidavit of executor will also need to set out who would be entitled under intestacy. If the people that would be entitled under intestacy are different from the beneficiaries under the informal will then it will be necessary to either obtain the consents of those persons who will be adversely affected if a grant is made in relation to the informal will, or to prove that they have at least been served with notice of the application. See Supreme Court Rules Part 78 Rule 14 and Division 6, and UCPR Form 134.
Caveats and contested proceedings
A person with an interest in the estate of a deceased person can file a document called a caveat which prevents the Court from issuing a grant in relation to the estate. See Supreme Court Rules Part 78 Division 10. A caveat remains in force for 6 months from the date on which it is filed. There is an approved form for a caveat (UCPR Form 141) and a filing fee is payable. The caveat must be served on any known applicants or potential applicants for a grant of probate or administration of the estate.
The Court will not stop making a grant in relation to a pending application simply because someone with a potential interest writes a letter or calls the Registry. The reasons a caveat is filed include where someone wants to challenge the validity of a will, which may be an informal will or a will that appears to be valid but where there is a claim that the will is a forgery or that there is doubt as to the testamentary capacity of the testator, or a claim that the will was executed under undue pressure. There may be circumstances where there are two or more possible wills naming different executors.
An executor that wants to proceed with an application for a grant of probate can apply to the Court for a caveat to be removed if they believe that the caveator has no standing or that there is no real dispute as to the validity of the will. See Supreme Court Rules Part 78 Rule 71. Alternatively, if there is doubt as to the validity of a will, contested proceedings can be commenced for probate to be granted in solemn form. Such proceedings are commenced by statement of claim. See Supreme Court Rules Part 78 Rule 72. An application for a grant in solemn form is determined by a judge rather than a registrar.
20 Sep 2023
We acknowledge the traditional owners and custodians of the land on which we work and we pay respect to the Elders, past, present and future.