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Probate Solicitor Or Letters Of Administration
Probate is the legal term for the process where a Will is “proved” to be the last Will and testament of a deceased person. This process is often conducted by a probate solicitor.
Why you should appoint a probate solicitor
Applying for probate can be a complicated process, which is why you should appoint an experienced probate solicitor from Lawpoint to assist. There are technical legal requirements in obtaining a grant of probate, which if not met can mean that the application is refused.
The word “probate” itself, refers to the application submitted to the Supreme Court of New South Wales by an executor(s) specified in a deceased’s Will. You must first be granted probate before an executor of a Will is legally entitled to administer the deceased’s estate and distribute it to beneficiaries.
If someone dies without leaving a Will, this is known as being intestate and requires an application for letters of administration. It is a similar process to applying for a grant of probate, but does have some important differences. An application for letters of administration is usually made by the deceased’s next of kin. The first step is to determine whether the deceased left a valid Will. This often involves making comprehensive inquiries and investigations with previous lawyers used by the deceased, the person who signed the enduring guardianship application, and with the deceased’s relatives to try and locate a valid Will.
In some cases, if the value of the estate is less than the small estate threshold, probate is not required. If you’re not sure if you need to make an application for probate, Lawpoint’s probate lawyers can help.
Where there is no valid Will of the deceased, a next of kin must apply for letters of administration. The applicant next of kin is given the authority by the Court to act as executor(s) and administer the estate.
What is the Executor's role?
Whether probate or letters of administration are granted, the executor’s role is similar. This role starts with determining all of the assets and liabilities of the deceased including funeral and burial costs. Once probate is granted, the assets are realised and the liabilities are paid. Finally, it involves distributing the net assets to the beneficiaries listed in the Will or, where there is no Will, to the beneficiaries entitled to the estate pursuant to the Succession Act 2006.
It is important that you get advice from an experienced probate solicitor to ensure that an application for probate or an application for letters of administration are made correctly. We also have a highly experienced team of wills and estates lawyers who can prepare your Will, or prepare power of attorney/enduring guardianship documents to help you with your estate planning.
Contact us now to schedule a consultation with a probate solicitor.
Frequently Asked Questions
Please note, the following information should not be relied upon as legal advice or as a substitute for legal advice.
If you require legal advice, please contact Lawpoint.
If you’re in NSW, we have the best probate solicitors in Sydney. Our lawyers are highly experienced and skilled in all wills and probate matters. If you’re outside of NSW, you will need a local firm to assist you, as there are different probate laws in different jurisdictions.
Toggle ContentLawpoint has extensive experience in all areas of wills and estate planning, probate applications and letters of administration– including highly complex ones. If you are you in NSW and have a need for a wills and probate solicitor, contact Lawpoint and one of our expert probate solicitors will assist you.
We are often asked “do I need a solicitor for probate?” – and the simple answer is, yes. But it is a complicated process with technical legal requirements. If they’re not met – the probate application can be refused or requisitioned, which means further time and effort spent in an attempt to meet the Court’s requirements before granting probate.
There are also some instances where probate is not required at all – but your best starting point is to contact Lawpoint and get some guidance from one of our probate solicitors.
Usually, the executor will apply for probate of a deceased’s estate. An executor is the person named in the will as the person who will carry out the directions contained in the will. This will include applying for probate and once it is granted, collecting assets, paying debts, converting property to cash and making final distributions to beneficiaries. It can also include instructing accountants to prepare outstanding tax returns or estate returns and other administrative tasks.
If the deceased did not leave a will, the deceased’s next of kin may need to apply for letters of administration, which is similar to probate but only applies where there is no will. The documents needed to apply also differ to a probate application.
If you are unsure if your loved one left a will, an experienced solicitor will make enquiries to try and locate the will for you. These enquiries are made with other solicitors, with the NSW Trustee and Guardian and may also be made with banks or other organisations with whom original wills are sometimes stored.
You will also need the original of the official death certificate issued by the NSW Registry of Births, Deaths and Marriages. Each of these documents will need to be presented to the Court together with other documents such as an Affidavit in order to prove the will and obtain probate of an estate.
If you have a grant of probate from another state, you cannot use that grant to administer the deceased assets in NSW. You will instead need to apply for what is known as a reseal of probate before you can deal with the deceased assets in NSW.
Solicitors fees for probate in NSW or letters of administration are fixed Schedule 3 of the Legal Profession Uniform Law Application Regulations 2015. The legal fees are calculated based on a sliding scale, with fees increasing in line with the higher value of the estate. This is because the larger and more valuable the estate, the more work that is required to obtain probate or letters of administration. Similarly, the filing fee for a probate application for letters of administration is determined by reference to the value of the estate. The current filing fees can be found here.
In effect, what this means is any solicitor in NSW that does your probate, will charge you the same fee. What you need to look for is someone experienced, who can communicate clearly so that you understand the process and someone who can prepare and lodge your probate application accurately to ensure it is granted in a timely way.
It is important to note that the Regulation only relates to legal fees. Solicitors costs for probate are not included. These are disbursements incurred such as the fees for advertising the intent to apply for probate. Once probate is granted, additional legal fees will be incurred to administer the estate which will include collecting assets, paying debts, selling or otherwise dealing with property and making a final distribution to beneficiaries. You should ensure that these additional costs are clearly disclosed to you up front.
This varies greatly, depending on the size, value and nature of the estate. It can also depend on how easily you are able to locate all of the beneficiaries. Where beneficiaries reside overseas, this can take longer to finalise.
Administration of the estate can also be delayed if there are properties that need to be sold as it is difficult to estimate how long it will take to sell property at a fair market value. Property transactions including marketing campaigns and settlement periods usually take about 3 months.
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