Frequently asked questions

Probate

What do I do when there is a death in the family?


There are many tasks to take care of when someone passes away. We understand that this is a difficult time and we are here to assist you in every way we can. Click on the link below to access our guide on the immediate steps to take when someone passes away: https://www.mjmlawyers.com.au/post/steps-to-take-when-someone-passes-away If you have any questions or concerns about what you need to do, please do not hesitate to contact us.




I have been appointed as an Executor - what do I do?


Step 1 - Seek Advice

We can help you understand your duties and obligations and guide you through the process.

Step 2 - Conduct searches to check that there is no later will

If there is a later will, then it may appoint someone else to act as Executor. See our information sheet on the searches that should be undertaken to ascertain whether there is a later will or codicil (a document amending or adding to a will), by clicking the link below:

https://www.mjmlawyers.com.au/post/where-and-how-to-look-for-a-will

Step 3 - Decide whether you wish to accept the appointment as Executor or whether you wish to renounce

If you have been appointed as an Executor, you do not need to accept the appointment if you don't want to. You have a choice. If you do not wish to accept the appointment, then you will need to "renounce" by signing the relevant form. We can assist you with this.

Steps 4 - Make an application for Probate of the Will

If wish to accept your appointment as Executor, then you should contact us to discuss making an application for a Grant of Probate of the will to the Supreme Court of New South Wales. See the further questions below about making an application for a Grant of Probate.




How do I find the Will?


Click here to find out how to search for a Will: https://www.mjmlawyers.com.au/post/where-and-how-to-look-for-a-will




What is an Executor?


The Executor is the person who is appointed or named in the Will to act as the Executor. The Executor is responsible for collecting the deceased's assets, paying any debts and liabilities of the deceased or of the estate and then distributing the assets to the beneficiaries, in accordance with the provisions of the Will.




What is a Beneficiary?


The beneficiary is any person named or described in the will as being entitled to receive a gift or share of the estate of a deceased person.




What do I do if there is no will?


If the deceased died without a will, then they are said to have died "intestate". In Australia, the relevant "laws of intestacy" will then apply to determine who is entitled to receive the deceased's assets. The people who are entitled to receive the assets will depend on the relationships the deceased had and the relevant people who have survived him or her. In some circumstances, where there is no surviving spouse (including de facto spouse) children or other relatives, the estate may pass to the government.

INTESTACY




What if I can't find the original will and I only have a copy?


If you can't find the original will, it is sometimes possible to obtain a Grant of Probate of a copy of the will. However, this can be complicated. Contact us for further advice.




What is a Testator?


This is a legal term to describe the person who has made a will.




What is a Codicil?


A codicil is a document that amends or adds to, rather than replaces, a previously executed will.




What is a valid Will?


To be valid a will or codicil, it must be in writing and signed by the deceased 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. Please contact MJM Lawyers for more advice and see additional questions below .




I have a 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 [ see below for definition],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 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 deceased 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.




What is an Affidavit?


An Affidavit is a written statement of fact which has been verified as truthful by the mechanism of a solemn process before another party. ... Most Court business is transacted on the basis of evidence in the form of affidavits, not witnesses giving oral testimony in Court.




Can I apply for Probate with 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 submitted with application, 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.

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 [ definition see below].

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 Grant of Probate on a copy of a Will is called a Limited Grant




What’s 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




What is intestacy?


If a person dies without a Will you are said to die intestate. ... Intestacy may occur not only where a person fails to make a Will but also for other reasons such as: the Will fails to properly dispose of all their assets. the Will is not valid because it has not been signed and witnessed according to the law. There are other reasons why a Will may be seen as invalid. Please see addional questions below.




I found two or more different wills?


Only one version of a Will is valid

The courts will examine the documents to determine which one is the most recent version, which will often take precedence over any previous versions, assuming the latest one has been properly executed. When the latest version is not valid because it was not properly executed or there was undue influence, fraud or some other type of valid reason, the courts may rule that a previous version of the deceased last will is valid and that distribution and administration of the estate is done in accordance with the terms and instructions set forth in that document.




The deceased was not of sound mind when they made the last will, what do I do?


Where a person is not of "sound mind" or where they lacked testamentary capacity, that is the deceased did not have the mental capacity to make a legally binding and valid will, the will can be set aside and the next earlier will in time becomes the last will and testament of the deceased. There is a lot of issues relating to and proving this. MJM Lawyers strongly suggest contacting them if this issue is to be investigated.




What is Testamentary capacity?


Testamentary capacity is the legal term used to describe a person's legal and mental ability to make or alter a valid will. This concept has also been called sound mind and memory or disposing mind and memory. In order to create a valid will, the deceased must have mental capacity at the time they executed it.




I found a Will that was made before the Deceased married [ or remarried]


Generally, in NSW the will is revoked upon marriage.

However, Wills made in contemplation of marriage are not revoked if the marriage contemplated takes place.




When is Probate not required?


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. They may simply require sighting the original will and original death certificate. This may be different from one asset holder to another like Banks. Please see the link to the NSW Supreme court with detialed information on PROBATE




When Probate is required


In most cases, if the deceased owned property or assets that had no other names attached, an estate must go through probate in order to transfer the property into the name(s) of any beneficiaries.




The deceased had assets in other States and Overseas, what do I do?


Grants of Probate can only be granted in NSW on assets within NSW.

It there is asset in other states of Australia or Overseas, Grants may need to be applied for in each of the states/ countries that the asset resides in.

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.

A solicitor in those states or countries that deals with Grant of Probates will need to be contacted. This can be done yourself or MJM Lawyers can do so on your behalf.

Please see link to the Supreme Court of NSW on Reseals of Probate




What do I do if the Will is from another State or from Overseas?


If the deceased livred in onther state or Overseas and has assets in NSW, a Reseal of the Grant of Probate is required for the asset helpd within NSW. MJM Lawyers often conducts Reseals of Grants on behalf of clients in other states and overseas

Please see the link as a guide from the NSW Supreme court. This is a task that MJM Lawyers is qualified and happy to undertake on your behalf.

Reseal of Grant of Probate in NSW




What is a resealing of the original grant? / Reseal of Probate?


A Reseal of Probate or Grant of Probate is the expression used when you need to apply to another State's Supreme Court, so that a Will that has already obtained a Grant of Probate in one State, can be recognised in another State.




Can I do the Grant of Probate myself?


It is always recommended that Executors seek legal advice to ensure this can be done correctly and without too much complication. Many Estates are straight forward and reality easy to undertake if you have the time. Please review the NSW Supreme Court website for steps.

However, as you have read it can soon become very difficult and time consuming. The is where the expertise of MJM Lawyers can assist

Please refer to the link to the Supreme Court of NSW for the steps to be undertaken for the Application of a Grant of Probate in NSW




What does a Grant of Probate Cost?


Grants of Probate have a fixed fee schedule so you will know beforehand the costs that can be incurred.

At MJM Lawyers our fees are usually less than this fee schedule

Please see the link for the filing fees “Uncontested” as posted by the Supreme Court of NSW dated 11 July 2019. Probate Fees There are 3 fees sections Filling Fee Solicitor Fees Other Fees The following are the filing fees for the respective estates, as of the 2020/2021 tax year: Gross Value of NSW EstateCourt Filing Fee Filing Fees Less than $100,000 Fee waived $100,000 or more, but less than $250,000 $772 $250,000 or more, but less than $500,000 $1,048 $500,000 or more, but less than $1,000,000 $1,607 $1,000,000 or more, but less than $2,000,000 $2,141 $2,000,000 or more, but less than $5,000,000 $3,568 $5,000,000 or more $5,948 Solicitors Schedule of Fees. For Probate, Solicitors have a fee schedule where they are restricted on the maximium that is allowed to be charged depending on the value of the estate. MJM Lawyers always charge less than these scheduled fees and are highly competive compared to other legal firms. Disclosed value of assets Costs payable Not exceeding $30,000 $560 Plus $13.33 for each $1,000 up to $30,000 Plus GST Exceeding $30,000
but not exceeding $150,000 $960 Plus $5.90 for each $1,000 in excess of $30,000 Plus GST Exceeding $150,000
but not exceeding $1,000,000 $1,670 Plus $4.47 for each $1,000 in excess of $150,000 Plus GST Exceeding $1,000,000
but not exceeding $3,000,000 $5,470 Plus $1.66 for each $1,000 in excess of $1,000,000 Plus GST Exceeding $3,000,000
but not exceeding $5,000,000 $8,800 Plus $1.10 for each $1,000 in excess of $3,000,000 Plus GST Exceeding $5,000,000
but not exceeding $10,000,000 $11,000 Plus $0.90 for each $1,000 in excess of $5,000,000 Plus GST Exceeding $10,000,000 $15,500 Plus GST In addition to the Solicitor and Court Fees, there are other fees to take into account. Other fees Two online notices are required as part of your Probate application, these are: Online Notice of Intended Application for Probate (or Administration) - $48 Online Notice of Intended Distribution of Estate - $48




What is Uncontested Probate?


An uncontested will is a will that is processed through the normal channels, meaning no one challenges its validity, the person who was appointed as the executor, or the percentage of distributions that may be named inside the will




What happens if someone contests a Will?


If as the Executor, you are notified that someone will contest the will, please contact MJM Lawyers. They will advise on the actions required.




How do I contest a will?


There are four grounds for contesting a will:

(a) either the will wasn't signed with the proper legal formalities. Or

(b) the deceased lacked the mental capacity to make a will, or

(c) the deceased was unduly influenced into making a will, or

(d) the will was procured by fraud.

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. 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 deceased, 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.. 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. An application for a grant in solemn form is determined by a judge rather than a registrar.

Contact MJM Lawyers to discuss these issues to confirm you have a case to proceed.

[create online assessment questionnaire]




I was left out of the will can I still claim?


Yes there is still opportunities to claim against the estate if you feel you have been left out of a will and you believe this is unfair.

You should take the following steps as soon as possible:

  1. Contact the executor and/or the solicitor acting for the estate and try to obtain a copy of the will.
  2. Start gathering evidence about your relationship with the deceased. See following question refering to evidence required to contest Will.
Obtain legal advice as soon as possible. MJM Lawyers will review your case and advise you. It’s important to act quickly because there is always a risk that the deceased’s assets in the estate could be sold or transferred to someone else.




Contesting a Will what evidence is required?


The Court considers many factors whe determining if the will can be contested. Some of the main areas are:

  1. Was the provision you have already received adequate in relation to your maintenance, education and advancement in life.
  2. Is there competing claims of other eligible persons or beneficiaries and there strenght compared to your claim
  3. The nature and duration of your relationship with the deceased.
  4. Your financial resources and earning capacity.
  5. The size of the estate plays a large part on the ability to challenge. It the Estate is very small and after all the compulsary costs are taken out then the estimate of the Solicitors challenging the estate are taken in account, there may be very little left to be worth challenged regardless of how strong your claim is.
  6. While the deceased was living the court will take in account the contributions you made, both financial and non-financial to them.
  7. Any provision financally or in assets the deceased made for you during their lifetime.
  8. Aboriginal or Torres Strait Islander customary law (where relevant).
  9. Certain categories of eligible persons must establish that their relationship with the deceased person was such that they ought naturally to have been a beneficiary.




How Long does Probate take?


Step 1 An online Probate Notice of your intention to apply for a grant must be published, on the NSW online registry website, for at least 14 days, before lodging a summons for a grant of probate with the Court. A fee will be charged to publish a Notice. Please refer the the link for more details Probate Advertising This is to allow time for any crditors or claimants to make a claim if required. Information on publishing a probate notice Before publishing a Probate Notice search by the name of the estate for an existing notice, in case there is a competing or duplicate application using the Free public search for a published notice A court case record will be created and a case number will be issued when your Notice is published. The case number should be recorded on your summons for probate and any other document submitted with your application at the expiration of 14 days and referred to when contacting the Court Registry. As a Case record is created on publication of a notice it is very important that the information contained in the notice is correct. A lack of accuracy in your notice may lead to delays in your application being granted. You will need to have the following information available so that you can publish a Notice: the deceased's date of death; the deceased's will and any codicils (if applicable); if you are applying for reseal, the jurisdiction in which the original grant was made, and the type of grant made by the original jurisdiction; and the residential address of executor(s) Step 2 After the 14 days has lapsed, the application may be filed in the Supreme Court of NSW Probate registry. Filing Probate Application Step 3 The court will review the submitted documents which will be a minium of 5 working days. The time taken will depend on the workload of the Court. Please see link fo rthe current delays Probate Delays Once the application is accept it will be posted back to you via the supplied envelope. Processing Probate Step 4 Once Probate has been granted, the Executor then will take steps to distrubute the deceased's assets and to pay any debts or taxes - including income tax - owed by the deceased. Funeral expenses are to be paid first and there is a particular order in which any other debts must be paid. Once debts have been paid, assets are either distributed according to the terms in the will or they are sold so that money can be divided among the beneficiaries.








Do I have to use the solicitor that has the will as my solicitor?


No, there is no obligation to use the solicitor who prepared the will for the deceased or who currently holds the will. If you have been appointed as the Executor of the will, you have the right to seek advice from any other solicitor. If you would like us to act for you, we can obtain the original will from the solicitor who holds it, on your behalf.




Checklist for Probate


Please see a checklist from the Supreme Court of NSW





Wills


Executors