I am the Executor of a Will - Is Probate Mandatory in NSW?

If you have been appointed as an executor of a Will, you may wonder if obtaining Probate is a necessary step. The simple answer is that Probate is not mandatory for every executor. It acts as a legal confirmation that the executor is authorised to manage the estate's assets. Nonetheless, probate becomes unnecessary when the estate's assets are too minimal to warrant the process or when all assets are held jointly.

What is Probate?

Probate is a grant approved by the Court and gives an executor the authority to manage a deceased individual's estate and distribute the assets to the beneficiaries. A grant of Probate is a court order, that affirms the Will's authenticity and the executor's capacity to execute the Will's stipulations.

When is Probate required?

• If the amount held in the account exceeds $50,000, most banks will not release the funds to the executor until they have received a certified copy of a grant of Probate.
• Any real property transferred into the executor's name before being distributed to beneficiaries must also go through Probate.
• If the funds received from the superannuation have been nominated as part of the estate, a grant of Probate may also be necessary.

Challenges in the Probate Process

The following are some of the challenges that may arise throughout the Probate process:

• The Will is missing, or the executor cannot find it.
• Where there are multiple executors appointed, not all want to apply for Probate.
• All executors are either unable or unwilling to apply for Probate.
• The deceased's Testamentary capacity is in question.
• The Will is invalid.

For advice tailored to your specific situation, don't hesitate to reach out to our team at Greigs Legal. Contact us today on (02) 4647 2968 to arrange a consultation with one of our estate solicitors.