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What is Probate [and do I need it]?

Written by Celine Bacha
April 2021

When a person dies, they often leave behind assets such as property, bank accounts or shares. A legal representative is usually required to make an application for probate in order to deal with those assets which make up the ‘deceased’s estate’. The assets and liabilities of the deceased’s estate are disclosed to the Court in the relevant State as part of the application for probate.


What is probate?

In NSW, a grant of probate is a document issued by the Supreme Court of NSW confirming that the Will of the deceased person is valid and that the legal representative may deal with the estate in accordance with the deceased’s Will.


When is probate needed?

An application for probate will usually be required in circumstances where there is:

Real estate (solely-owned by the deceased or where the deceased owned a specific share of it);

Solely-owned bank accounts which hold a substantial value, say over $15,000;

Shares; or

where there is a nursing home bond to be refunded.


Who applies for probate?

If the deceased left a Will, the person named as ‘executor’ would apply for probate. Once probate is granted, that person becomes the legal representative of the deceased’s estate.


What if there isn’t a Will?

If the deceased did not have a Will but left assets/liabilities to be dealt with, a document similar to a grant of probate would need to be applied for. A person who was close to the deceased (eg. family or a friend) would make the application.


What if the deceased left assets and liabilities and probate is not applied for?

If a grant of probate is not obtained when it is required, the asset/liability will remain dormant and unable to be dealt with until a grant of probate is obtained.


If you are in a position where you may need to make an application for probate, give us a call. We will help you determine your obligations precisely, delicately and easily.

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CMM Quay Legal Group

CMM Quay Legal Group