When a person has been appointed as an executor under a Will they will sometimes need to obtain “probate” of the Will by making application to the Supreme Court.

A “grant of probate” simply means the formal approval by the Supreme Court to the last Will lodged by the executor with the Court. The formal approval allows an executor to collect the assets and pay the debts of a deceased person and then to distribute the estate as that person directs in his or her Will.

A grant of probate is only necessary when the deceased owned real estate (other than as a joint tenant) or had other assets in the way of bank accounts, insurance policies, superannuation, shares or other property where the particular institution will not pay out or transfer the asset without noting the formal probate document.

A grant will also be required if the deceased is involved in any legal proceedings or if the deceased held an interest in another estate.

If a deceased person died without a Will then it may be necessary for one of the relatives of the deceased person to apply for a grant of administration from the Court. It is best to seek legal advice on such an application.

Steps for Obtaining Probate

The law in New South Wales relating to grants of probate is set out in the Wills, Probate and Administration Act 1898 which may be purchased from the New South Wales Government Information Service.

The documents usually required to make an application for probate are:

1. A Notice of Intended Application
2. Summons for Probate
3. An Affidavit (ie a sworn statement) of the executor/s applying for probate.
4. An Inventory of the Property of the Deceased, setting out the estimated or known value of the deceased’s assets.
5. The Will of the deceased person.
6. Any Codicil or other document amending the Will.
7. The Death Certificate.
8. Possibly an Affidavit from either witness to the Will.