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An executor of a will has to apply for grant of probate or representation in the equity division of the Supreme Court. Probate is an order from the court stating that the deceased's will has been proved valid with authority to administer the deceased's estate being granted to them. The Supreme Court in its probate jurisdiction has the power to make orders in relation to the validity of the will, the appointment of an executor and the administration of a deceased estate. The Probate Office keeps a register of grants of probate and where subject to caveats matters set down for trial. Where an executor is faced with a contentious matter it is essential to obtain legal advice as soon as possible.
Where an executor is applying for a grant of probate there are a number of formal procedures which need to be followed. Normally the larger the estate the more complex the executor's task is and the more they require access to competent legal advice. This process starts with advertising the intention to apply for a grant of probate through to filing documents in court. Probate is not required for very small estates or where property is held jointly. A small estate is one which is valued at less than $50,000 for present purposes and there is no filing fee. Where there is no matter in dispute then a grant of probate in common form is issued. Where there are disputes then a court case follows after which the court will make a grant in solemn form. Although there is a commonly held view that with small estates a grant of probate is not required it is far more common, when dealing with banks and building societies, that they prefer to have one and if not then a significant amount of time will be wasted dealing with their internal procedures to ensure they are fully protected against liability when dealing with estate matters.
If there is a will but no executor then you need to seek expert legal advice. If there is no will and no executor the same applies. Where there is no will the deceased dies intestate and application has to be made with the Probate Registry of the NSW Supreme Court for grant of letters of administration which will authorise the administrator to proceed to administer the deceased's estate according to statute. As in all these processes when a person applies for letters of administration certain documents are required before the matter can proceed.
Where there is intestacy, assets are distributed to any one of nine different classes of beneficiaries according to prescribed statutory order. Where there is a person/s qualifying in a particular class the whole estate passes to that class and no one else. Although administration bonds have been largely dispensed with they are still required in some cases and a lawyer should be consulted. Where the applicant is a defacto spouse there are specific requirements which relate to this situation then a lawyer should be consulted.
Where an executor or administrator has been appointed the administration of the estate is not allowed to run on forever. In the ordinary course it should not take more than one year and a grant normally takes between two to four months and if longer than six as indicated previously then this requires explanation. Of course matters can be made more complicated where a will is contested or disputed - the former because of its validity and the latter because of a lack of adequate provision. In these cases one can expect that the distribution of an estate can be substantially delayed depending upon whether or not mediation is successful. Suffice to say once the mater has been disposed of a grant of probate in solemn is issued by the court. There are very few cases where a lay executor or administrator possesses the necessary knowledge and experience allowing them to successfully deal with the administration of an estate so don't take the risk, call LAC Lawyers without delay!
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