Wills & Estates
When a will is drawn up, it should nominate an executor or a group who will assume responsibility for distributing the estate in accordance with the terms of the will.
Upon the death of the person who wrote the will, in many cases, an application needs to be made to the court for ‘probate’, which approves the validity of the will and the right of the executor to enact its terms. In Australia, the application is made to the Probate Registry of the Supreme Court.
Where a person has died without a valid will, they are regarded as having died intestate. In this circumstance, a spouse, defacto spouse or another close family relative can apply to the Supreme Court to be appointed as “administrator” of the estate. If approved, they are granted ‘letters of administration’ (equivalent of Probate).
Clinch Long Woodbridge regularly assists executors in applying for probate, and also in performing the duties that are part of their role once probate has been granted. We can also help family members of someone who has died intestate in applying for letters of administration and supporting them in that role once approved.
Time limits apply to applications for probate. There are a series of requirements regarding publication notices and the recording of an inventory of assets and liabilities. We can assist with all requirements and provide advice and legal support in the event that an estate dispute arises.
Frequently Asked Questions
Why is it needed?
An Executor will typically require a Court grant of Probate in respect of a Will if real estate or other valuable assets must be dealt with – banks simply won’t open or close accounts. Insurers won’t pay, for example.
What issues can arise?
The Court may query a Probate application, therefore an experienced Probate lawyer is recommended to obtain a timely and cost effective grant. The Executor must file an affidavit with the Court, which includes an inventory of NSW assets.
Can I obtain Probate and then retire as executor at some point?
Yes, but only if you appoint the NSW Trustee and Guardian or a licensed trustee company in your place. Otherwise you are generally not allowed to resign or retire as Executor. It is therefore important to think carefully about accepting an Executor appointment and managing the deceased’s affairs in any way.
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