Wills & Estate Planning

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A Grant of Probate is a court order issued by the Supreme Court that confirms the validity of a Will, the death of the person who made the Will, and the authority of the appointed Executor to administer the estate. A valid Will must be in writing and signed by the person making the Will or by someone acting under the direction of the person making the Will. The signing of the Will must also be witnessed by at least two people who attest and sign the Will. A Grant of Probate is a document which consists of a cover page, a copy of deceased person’s Will and an inventory of the deceased person’s personal property. A Grant of Probate gives the Executor the power to deal with the assets and liabilities of the deceased.

Applying for a Grant of Probate can be a challenging time in your life. At Burgess Thomson we understand this and can assist you in the application process as well as administering and distributing the estate.

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Do I need a Grant of Probate?

You may be required to provide a Grant of Probate to various organisations before they give you assets which they held for the deceased person. Examples where a Grant of Probate will likely be required are when the deceased owned a house or land, held bank accounts with a substantial amount, owned substantial shareholdings or owned substantial superannuation. A Grant of Probate will not generally be required where there are insufficient assets to justify a grant of where all assets are owned in joint names, for example, between a married couple.

What if the Will was an Informal Will?

An Informal Will is a Will that does not strictly meet the requirements of a valid will. This could be because, the Will was only witnessed by one person or was partially damaged. An Informal Will could also be an unsigned note made by a patient in hospital, a note on an envelope containing money or a signed note in a person diary. An Informal Will could also be a document created and stored on an iPhone or computer. The court can dispense with the formal requirements of a Will if the document appears to contain the wishes of how the deceased person wanted to distribute their assets and the court is satisfied that the person intended that the document form his or her Will. The court may also consider the nature in which the document was made or signed. If the court accepts an Informal Will as a valid Will, then it will override any prior Wills made by the deceased. The court will then issue a Grant of Probate to the Executors to distribute the estate in accordance with the Informal Will.

Who is entitled to apply for a Grant of Probate?

A person who is appointed an Executor in the Will is entitled to apply for a Grant of Probate. If you are a substitute Executor in a Will, you will not be able to apply for a Grant of Probate unless the first named Executor becomes unable to act as Executor or renounces probate. If an Executor fails to apply for a Grant of Probate within six months of the death of the deceased person, then a beneficiary or another interested party may apply for a Grant of Probate.

What if I do not want to act as Executor?

You cannot be forced to act as an Executor under a Will. You can renounce your executorship and allow another appointed Executor or the substitute Executor to act in your place. Renouncing probate means you are giving up your right to act as Executor. If you wish to renounce probate, it is best to do so as soon as possible before there has been any administration of the estate. A Renunciation of Probate needs to be witnessed and lodged with the Supreme Court. You do not have to provide reasons as to why you do not wish to be an Executor. However, once an Executor has accepted the role and a Grant of Probate has been made, generally the Executor cannot change their mind. If for some reason and Executor cannot continue acting, an application must be made to the court setting out the reasons why they cannot continue and any impact this may have on the administration of the estate.

What is a reseal?

Generally, a Grant of Probate will only have effect in the jurisdiction in which it was issued. For example, if probate is granted in NSW but the deceased person held significant assets in another state, the Executor would need to have the Grant of Probate given force in the other state. This process is known as resealing.

How long does a Grant of Probate take?

It generally takes about four weeks between the date the Court receives the documents and the date probate is granted.

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