Do I need to obtain a Grant of Probate?

After a person passes away, their next of kin or nominated executor does not automatically obtain the authority to distribute the deceased persons assets (ie their estate). Generally, the appropriate person must obtain either a Grant of Probate or a Grant of Letters of Administration from the Supreme Court of New South Wales (“a Grant”) to give them that authority. The type of Grant you apply for will depend on whether or not the deceased person left a valid will. The flowchart below will assist you to determine which type of Grant you might need.

However, it might not be necessary to obtain any Grant at all.

Generally, you do not need to apply for a Grant if:

1. the estate only consists of jointly owned real estate; and/or
   
   
2. assets that are so low in value that none of the asset holders (eg. a bank or share registry) require a grant to transfer the asset.

Risks of not obtaining a grant

If the value of an asset (such as monies in a bank account) is low, asset-holders may dispense with the requirement of a Grant if the executor or next of kin signs a release and indemnity form. This generally requires the person to indemnify the asset holder for any loss or damages they incur if they have transferred the asset to the wrong person. As such, it is important to consider the possible financial risk associated with these indemnity forms and whether obtaining a Grant of Probate may be more appropriate.

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Disclaimer: This post contains information of a general nature only and is not intended to be used as advice in relation to a specific matter. Although every care has been taken in preparing the document, it may not be accurate or complete, particularly in the context of specific circumstances. MJM Lawyers disclaims responsibility for any errors or omissions.