Probates

In simple terms, probate is a legal procedure the estate undergoes after you pass away. During probate, the court system will start distributing your estate to your heirs. This legal proceeding is a generalised administration of a deceased person’s estate.

If there is a will, it typically names an executor to oversee this process. However, if there is no will, the court can appoint an administrator to guide the estate through this process. This involves collecting assets and paying the deceased person’s liabilities before distributing the remaining assets to the heirs or beneficiaries.

Generally speaking, you need probate to enforce any wishes you left in your will if you had one. However, if you die and don’t have a will but have assets that need to be distributed under your territory or state’s laws, probate guides the process and ensures everything is done correctly. This is why it’s a good idea to hire a probate lawyer if you’re trying to figure out how to handle any liabilities or assets a deceased loved one left.

Probate in NSW or anywhere in Australia can take anywhere from six months to years to finalise, and it all depends on whether or not the deceased had a will and the assets and liabilities they left. For example, if there are several different creditors that have to prove the deceased owed them money, or if the heirs are fighting the will, you won’t get a specific timeframe.

Once the executors get the Grant of Probate, they can administer the deceased’s estate when they finalise it. This process includes the distribution of the estate after probate to the beneficiaries or heirs named in the will after they collect all of the assets and clear any outstanding debt against the estate. Administering an estate means you:

•     Collect all of the deceased’s assets and property

•     Pay any outstanding debts

•     Use the will to distribute any remaining assets

You can administer the estate as soon as the court grants you probate, but many executors decide to go to the NSW Online Registry and publish a Notice of Intended Distribution before they give anything to the beneficiaries. This notice outlines that the executor will distribute the estate when:

•     The Notice is published for 30 days; and

•     The deceased passed away six months prior

Anyone who wishes to make a claim against the estate will have to do so during the outlined time frames. Once the executor publishes this Notice for 30 days and it passes the six-month mark from the day the person died, they can distribute the property in regards to the known claims.

If there is any concern about someone disputing the will after probate or making a claim against the estate, it’s a good idea to seek legal advice before you administer the estate.

It is possible for you to contest a will after probate. Once the court accepts a probated will, the executor or administrator can distribute any assets to the heirs. However, it’s a better alternative to ensure the correct will gets probated before you contest it. Otherwise, the court will accept the invalid or incorrect version, and you’ll have to file an action to have that will be invalidated. In turn, this will slow down how quickly the court distributes the assets, and it can cause feuds amongst the heirs or beneficiaries.

Contact our office if you’re looking for a reseal of probate or simply want to have a will in place. Our team of probate lawyers in NSW is ready to help secure your assets and protect your beneficiaries.