What is probate?

Published 28 Feb 2017

The legal procedures that underpin how a deceased person's estate is distributed to beneficiaries can seem confusing at first. However, if you are considering an inheritance dispute, you may want to learn more about wills and estate planning, including the probate process.

So what is probate? Well, when someone passes away in NSW, the executor of the will must seek authorisation from the state's Supreme Court to manage the testator's affairs.

The executor only has the power to collect the deceased's assets, pay any outstanding debts and distribute the proceeds according to the will once the Supreme Court provides a grant of probate.

This legal document confirms that the author of a will has died, that the will is valid and the executor is who they say they are. However, there is a time limit for applying for probate.

The Supreme Court Rules 1970, Part 78 Rule 16 state that executors must offer an explanation to the court as to why there has been a delay if probate is filed any time after six months from the date the deceased died.

What if there is no will?

A Grant of Probate requires an executor to produce a will, but not everyone writes a will before they die. In these circumstances, 'letters of administration' are issued, which are similar documents to a grant of probate.

Applying for letters of administration is usually a more complex process than probate, so you may wish to contact an experienced lawyer for guidance on how to proceed.

Once the appropriate documents have been received, the distribution of the deceased's estate can go ahead. For smaller estates, grants of probate may not be required and asset holders may be willing to release an individual's estate without the document.

When probate has been granted or letters of administration issued, you can take the opportunity to contest the will. For example, you may pursue a family provision claim if you are an eligible person and feel you have not been adequately provided for in the will.

You may also wish to challenge the will's validity; perhaps you believe the deceased didn't have the mental capacity to write a will or you suspect the document is a forgery.

These are just some of the reasons why you may want to contest a will after probate has been granted, but please contact Gerard Malouf & Partners Will Dispute Lawyers if you'd like to discuss an inheritance dispute in more detail.

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