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John Melis, Expert
Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.
Concerning your important matter where there is real estate and other fixed assets you'll need to apply for probate in order to administer the estate.
The best way to handle the probate situation is to seek assistance of lawyer that is nearby.
Once probate is granted this state will be distributed in the following manner detail below.
The executor of an estate is responsible for collecting the deceased's assets, paying any debts and then distributing the assets to the beneficiaries. A grant of probate is a legal document that authorises an executor (or executors) to manage the estate of a deceased person in accordance with the provisions of the deceased's will. The executor can take the grant of probate to persons that currently have assets of the estate or that are debtors of the estate (such as banks and retirement villages that are holding bonds) and require them to transfer the assets or monies to the executor (or to such other persons as the executor may nominate in accordance with the will).
Uncontested applications for grants of probate are considered and determined in chambers by a registrar. Grants of probate made on an uncontested application are known as grants in common form.
The Supreme Court of New South Wales only has jurisdiction if the deceased left assets in New South Wales. A grant of probate will not be made if the deceased had no assets in New South Wales.
If a deceased person owned assets in more than one state or country it may be necessary to apply for a grant in each place where assets were located. However, if the deceased had assets in different states of Australia or in certain countries, you may apply for a resealing of the original grant.
Depending on the type, size and value of the assets located in New South Wales it may not be necessary to obtain a grant of probate in New South Wales. There is no statutory requirement to obtain probate in every case. Some asset holders will often release smaller amounts without the need for probate to be obtained.
If assets of the deceased were jointly owned as joint tenants (that is where the co-owners did not own distinct portions of the property - no person has a separate share), if on the death of one of the joint owners (or tenants) the property automatically passes to the remaining joint tenant or tenants. There would be no need for a grant if all of the deceased's assets were held as joint tenants with someone that survived them.
If real estate is held solely in the name of the deceased or a share of real estate is owned by the deceased as tenants in common with someone else, a grant of probate will be required in order to deal with the asset. The certificate of title for real estate will show if the property was held as joint tenants or as tenants in common. The executor can contact the Land Titles Office to check this information.
If there is no real estate then you should consider approaching the asset holders (eg banks, superannuation funds, insurers) to determine if they will transfer the assets without a grant of probate being made. It may be possible to have the asset holder transfer the assets by showing them the original death certificate and will and signing a declaration of your entitlement and/or an indemnity in favour of the asset holder in case someone else subsequently makes a claim. This should be considered, particularly if the executor is the sole beneficiary under the will.
Different asset holders have different criteria and requirements for releasing assets. Note also that the proceeds of life insurance and superannuation generally do not form part of the estate. However, this will depend on the terms of the relevant policy. Despite this, sometimes the trustee will require a grant to be made or resealed before they determine who is entitled to the superannuation or insurance proceeds.
The Supreme Court Rules 1970, Part 78 Rule 16 govern the timeframe for lodging probate. If an application for probate is filed after 6 months from the date of death of the deceased, an explanation must be given to the court accounting for the delay. This can be done by either including an explanation in the affidavit of executor or lodging a separate Affidavit of Delay.
There is no prescribed or approved form for an Affidavit of Delay. If you are preparing a separate Affidavit of Delay adapt UCPR Form 40 and head it "Affidavit of Delay" and provide an explanation for the delay in the body of the affidavit.
All basic applications for probate require the same five documents. Additional documents may then be required to satisfy the court as to other issues.
The five basic documents are:
Form 111 — Summons for probate, administration, administration with the will annexed or reseal; Form 118 — Affidavit of executor; Form 117 — Inventory of property; will and any codicil; and Form 112 — draft Grant of probate letters of administration or letters of administration with the will annexed.
Intestate estates are distributed in the following manner:
Distribution if intestate leaves a partner and no child or other issue
(1) If an intestate does not leave a child or other issue but leaves a partner, the partner is entitled to the whole of the intestate's residuary estate.
(2) This section does not apply if an intestate leaves more than one partner.
Distribution if intestate leaves partner and issue of that partner
(1) If an intestate leaves a partner and a child or other issue who is also a child or other issue of that partner, the partner is entitled to the whole of the intestate's residuary estate.
(2) This section does not apply if an intestate leaves—
(a) more than one partner; or
(b) a child or other issue who is not also a child or other issue of the intestate's surviving partner.
Distribution if intestate leaves partner and child or issue not the child or issue of that partner
(1) If an intestate leaves a partner and a child or other issue who is not the child or other issue of that partner, the partner is entitled—
(a) if the intestate's residuary estate is worth not more than the amount of the partner's statutory legacy, to the whole of the estate, including the personal chattels of the intestate; and
(b) if the intestate's residuary estate is worth more than the amount of the partner's statutory legacy, to—
(i) the personal chattels of the intestate; and
(ii) the amount of the partner's statutory legacy; and
(iii) interest on the partner's statutory legacy calculated at the legacy interest rate from the date of the death of the intestate to the date of payment of that legacy; and
(iv) one half of the balance of the residuary estate.
(2) If subsection (1)(b) applies, any children of the intestate are entitled to the other half of the balance of the residuary estate, and if more than one, in equal shares.
(3) If one or more of the intestate's children predeceased the intestate leaving issue who survived the intestate—
(a) the share of the deceased child is to be divided between that deceased child's children; and
(b) if any of those grandchildren of the intestate predeceased the intestate leaving their own issue who survived the intestate, the deceased grandchild's share is to be divided between the deceased grandchild's children and so on until the entitlement is exhausted.
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