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 NSW, 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.

Contact us to find out what to do next.




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, the will must usually be in writing and signed by the testator in the presence of two witnesses who also sign the will in the presence of each other and the testator. However, a document that does not meet these formal requirements (referred to as "informal wills") can be admitted to probate if the Court is satisfied that the deceased intended the document to operate as will. Contact us if you discover any document (in hard or soft copy) or recording that deals with the distribution of a person's assets.




What if I have a unsigned and/or undated Will?


If a document that appears to be a will is undated or unsigned, it may still be accepted by the Court as a valid will. Evidence may need to be provided as to when the will was created or executed. This will be particularly important if there is another will, to establish which was the last-made will.




What is an affidavit?


An affidavit is a written statement of evidence that has been sworn or affirmed as being truthful before an appropriate person, such as a Justice of the Peace or a solicitor.




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 of the copy of the will.

Searches must be done to try to locate the original Will.

If the evidence suggests that the original will was last in the possession of the deceased then if the original will can not be found, 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 that goes to prove that the deceased did not revoke the will. Such evidence can include conversations the deceased may have had to the effect that the deceasd believed that the will was still in existence 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.




What is intestacy?


If a person dies without a Will they are said to have died "intestate" and the laws of intestacy will govern the distribution of their assets.




What if the deceased was not of sound mind when they made the last will


If a person is not of "sound mind", then they may lack the required level of mental capacity (known as testamentary capacity) to make a valid Will. If that can be proved to the satisfication of the Court, then the will can be set aside and the second last Will (the penultimate will) may then become the last vallid will of the deceased (unless that Will is also invalid for some reason).




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. In order to create a valid will, the deceased must have testamentary capacity at the time they executed it. The test for testamentary capacity is that the will-maker: (a) must have understood the nature and significance of the act of making a will; (b) must have understood the nature, extent, and value of their estate; (c) needs to be capable of comprehending and appreciating the claims of those who might expect to receive something from his or her estate; and (d) must not have suffered from a delusion that influenced the terms of the will at the time it was made (i.e., was the will ‘tainted’ by delusions the deceased was suffering at the time?).




I found a Will that was made before the Deceased married


Generally, in NSW a will is revoked upon marriage, unless the will is expressed to be made in contemplation of marriage. Contact us to find out more.




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. Some asset holders will often release assets of low value without the need for probate to be obtained, but they will usually require an indemnity to be provided by the person to whom they intend to release the money or asset. You should seek legal advice before signing any such document.




When Probate is required?


In most cases, if the deceased owned real property or assets in their sole name, a grant of probate is required before the assets can be transferred to the beneficiaries. There are exceptions - see the answer to the question: When is Probate not required?




The deceased had assets in other states or overseas - what do I do?


Grants of Probate can only be granted in NSW if the deceased left assets within NSW.

If the deceased had assets in another state or territory of Australia or in certain other countries, you may be able to apply for a reseal of the original Grant in that other jurisdiction. Otherwise, you may need to apply for a fresh grant in the other country.




How much does obtaining a Grant of Probate cost?


Go to mjmlawyers.com.au/onlineprobateapplication for more information.




What happens if someone contests a Will?


Someone may contest the validity of the will, for example on the grounds that it was not signed correctly, the will-maker did not have the required mental capacity to make a will, the will-maker did not know or approve of the contents of the will, the will-maker's signature was forged or the will-maker was subjected to undue influence when making the will. Certain eligible people may also make a claim to receive more from the estate. Court proceedings may be commenced to resolve the dispute. Contact us for more information about what to do in these circumstances.




What can I do if I have been left out of a will or I haven't received enough?


You may be able to make a claim against the estate if you have been left out of a will or you have not been left enough to provide for your needs.

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, if you do not already have it;

  2. Contact us as quickly as possible as time limits apply.

  3. Find out more about family provision claims in our knowledge hub.




How long does obtaining a grant of 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. This allows time for any creditors or claimants to make a claim if required. Step 2 After the 14 days has lapsed, the application may be filed in the Supreme Court of NSW Probate registry. 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.




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.





Wills


Executors