What is the meaning of Probate?  

Where a person dies with a valid Will in place, Probate is an order obtained from the Supreme Court of New South Wales that confirms a Will is the last Will of a deceased person. The Grant of Probate confirms the executor appointed under the Will has the authority to administer the estate of the deceased person in accordance with the terms of the Will. The administration process involves collecting assets, paying debts and liabilities and distributing the remaining assets to the beneficiaries under the Will.  

To obtain a Grant of Probate, certain documents (including specific Court documents and the original Will) need to be filed by the executor. 

If a deceased person died without a valid Will in place, the grant obtained from the Court is called ‘Letters of Administration’ and the person who has the right to administer the estate is called the ‘Administrator’.  

If the executors nominated in a valid Will are unable or unwilling to accept the executor role (for example, because of death or incapacity), then the grant obtained from the Court is called ‘Letters of Administration with the Will annexed’ and the person the grant is made to is also called an Administrator. 

Not every estate will require a Grant of Probate or Letters of Administration to administer the deceased person’s estate. Whether or not a grant of representation is required will depend on the nature and value of the assets owned by the deceased. For example, a grant is required if the deceased owned real property or a proportion of a real property in their sole name, or if the asset holder (such as a bank, or share registry) of the deceased’s asset requires a grant before releasing the asset. 

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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.