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How long does probate take?

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How long does probate take in NSW?

After applying for a grant of probate, it usually takes between 4 to 10 weeks for the court to approve it. This timeframe can vary due to additional questions from the court (called requisitions) and the court’s own processing times.

Once probate is granted, the next step is to manage the estate, which may take some time depending on how the assets are handled (such as selling them or transferring them to a beneficiary).

It's important to know that even after probate is granted and the assets are quickly collected, the executor cannot distribute the estate until 6 months have passed from the date of the deceased’s death.

The Probate Journey

The long probate road starts with the intention to apply. If your loved one left a will, then the named executor will manage the probate process and distribution of assets. Without a will, then you'll have to go to the Supreme Court for a Grand of Probate. Then, you’ll go through the application for probate, notice to creditors, and income tax assessment. Here’s what to expect in every stage.

1. Publish the Notice of Intention to Apply for Probate.

As the person legally named in the will to administer the estate, the executor is primarily responsible for publishing the Notice of Intention to Apply for Probate. This is the first step in the probate process, which starts the 14-day waiting period for potential claimants and other interested parties to come forward.

Additionally, as decided by the will or applicable laws, beneficiaries may be required to outlive the deceased person by a certain period, usually after 30 days. This clause helps prevent complications in the event that a beneficiary passes away shortly after the deceased.

2. Apply for probate.

Once the 14-day waiting period has passed, the executor can apply for probate at the Supreme Court of the state. The process involves submitting different documents, such as the deceased person’s will, death certificate, and other relevant paperwork.

How long does probate take in the NSW Supreme Court? The average processing time is 28 days. However, some applications take as little as 10 days, while others may go on for 3 months. Common reasons for probate to be processed longer than expected include defects in the will (e.g., errors, ambiguities), defects in the application (e.g., inaccuracies, missing information), and complicated assets. If the court requires more information, they will issue a requisition to which the executor must promptly comply.

3. Send a notice to the creditors.

Upon obtaining the Grant of Probate, the executor should publish a second notice called the Notice to Creditor. This aims to inform the creditors of the deceased about their passing.

The executor typically advises a 6-month waiting period before distributing the assets to the beneficiaries. During this waiting period, creditors may come forward to settle any debts before the estate is distributed. In some cases, the executor advises to wait a full year.

4. Assess the income taxes.

The last step is to get the final income tax assessment, which may also be one of the most time-consuming aspects of estate administration. This can be affected by various factors, such as asset freezing and extended finalization. In some extreme cases, finalizing the estate may take several years. This clause helps prevent complications in the event that a beneficiary passes away shortly after the deceased.

How long does probate take in NSW?
The Probate Timeline

In NSW, the quickest probate we have achieved for a client is 10 days. However, the probate process typically takes 6 to 12 months. Key steps include confirming eligibility, obtaining the original Will and death certificate, publishing 14 days notice, filing for probate, and a 2 to 6 weeks for court. Distribution is usually within 12 months.

Date/Time Event Details
Date of Death Death of the deceased The process begins upon the death of the individual.
Day 1 Executor identifies eligibility The executor must confirm they are eligible to apply for probate.
Day 1 Obtain original Will and death certificate The executor must locate the original Will and obtain a death certificate.
Day 1 Compile inventory of assets and liabilities The executor must gather details about the deceased's assets and liabilities as of the date of death.
Day 1 Prepare Notice of Intended Application The executor prepares the notice to publish online, alerting creditors of the impending probate application.
Day 1 to Day 14 Publish Notice of Intended Application The notice must be published on the NSW Online Registry for at least 14 days before filing for probate.
Day 15 File application for Grant of Probate After 14 days, the executor can file the application with the Supreme Court of NSW, including required forms.
2 to 6 weeks post-filing Court processes application The Supreme Court typically takes 2 to 6 weeks to process the application, depending on workload.
10 working days post-processing Grant of Probate issued (if uncontested) If the application is straightforward, the court may issue the Grant of Probate within approximately 10 days.
Within 6 months of death Apply for Grant of Probate Executors are expected to apply within 6 months of the death; otherwise, an explanation is required.
30 days post-Notice Protection from personal liability for distribution Executors can distribute assets after 30 days from the notice publication, gaining protection from claims.
Within 12 months of death Distribute estate to beneficiaries Executors should aim to distribute the estate within 12 months of the deceased's death.
How long does probate take? The shortest time we have accomplished this is 10 weeks.

This table outlines the key dates and events involved in the probate process in New South Wales, including both legal and procedural requirements. Executors must adhere to these timelines to ensure compliance with legal obligations and to facilitate the smooth administration of the estate.

The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.

NSW Court Case:

From the section above, we now have a better grasp of the probate timeline. Now, let’s look at a real-life scenario to further answer the question, “How long does probate take in NSW?”

In the Estate of Susan Williams (2020) NSWSC 678, the probate process extended over two years due to various complications, leading to substantial legal fees and frustration among beneficiaries. This case illustrates the potential delays in probate and their impact on an estate.

What Happened:

Susan Williams passed away, leaving behind a complex estate with multiple properties and investments. Her will was contested by a distant relative, leading to a legal dispute that significantly delayed the probate process. The contestation of the will was based on claims of undue influence and lack of testamentary capacity, requiring extensive legal examination and testimony.

Participant Behavior:

The executor, Susan’s daughter, followed the legal requirements but was overwhelmed by the contestation. The relative who contested the will engaged in aggressive legal tactics, filing multiple motions and requesting numerous documentations. This adversarial approach led to prolonged court proceedings and mounting legal costs.

The Legal Process:

The court had to assess the validity of the will, examining evidence from medical experts, witnesses, and financial records. Each side presented detailed arguments, leading to multiple hearings and adjournments. The process involved thorough scrutiny of Susan's mental state at the time the will was drafted, as well as the intentions and influences surrounding its creation.

Financial Consequences:

The estate incurred over $50,000 in legal fees due to the extended probate process. Additionally, the value of certain investments declined over the two-year period, resulting in an estimated loss of $30,000. These financial impacts significantly reduced the inheritance available to the beneficiaries.

Conclusion:

The court eventually upheld the will, ruling against the relative's contestation. However, the prolonged process and financial losses underscored the importance of understanding and preparing for potential probate delays. The judge emphasized the need for clear and thorough will documentation to prevent similar disputes in the future.

As the probate timeline and real-life court case show, the probate process in NSW can oftentimes be a long road, so you’ll need the help of legal professionals committed to your cause. Contact CM Lawyers today to start your probate journey.

Lessons Learned:

  1. Detailed Will Documentation: Ensure that the will is comprehensive and includes clear evidence of the testator's intentions and capacity.

  2. Legal Preparedness: Be prepared for potential contestations by consulting with a probate lawyer and having a strategy in place.

  3. Communication: Maintain open communication among beneficiaries and the executor to manage expectations and reduce conflicts.

  4. Financial Planning: Consider the potential for probate delays when planning the estate to mitigate financial impacts on beneficiaries.

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