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What is probate?

When somebody passes away, the estate cannot be distrusted in accordance with the terms of the will until the will has been approved by the Supreme Court of NSW – this approval is called probate.

Once granted probate, the executor can then distribute the estate.

Who can apply for probate?

The executor applies for the grant of probate.

However, there might be circumstances where the executor is not the one to make the application, including:

  1. If the executor does not want to and they “renounce probate” which means they relinquish the role.
  2. If the executor in the will has passed away or is not around.
  3. If the executor is being negligent and refusing to apply for probate.

In these cases, another interested person (ie. A beneficiary, family member etc.) can apply to the courts to have the will approved, however, this would usually be done through a similar process known as letters of administration with the will annexed.

How long does probate usually take?

Usually the probate process (including distributing the estate) will take between 8 to 12 weeks, which will depend on the court processing time. However, the whole process of obtaining process and administering the estate usually takes between 6 to 12 months. It is important to note that an executor should not distribute the estate prior to 6 months to ensure their personal protection from any unforeseen creditors of the estate.

The probate process can be broken down into 3 general steps:

  1. Information collection and document preparation;
  2. The application process – filing the documents with the court; and
  3. Administering and distributing the estate.