When is probate required in NSW?

Probate is a crucial legal process that validates the will of the deceased and allows the assets to be distributed by the executor to the beneficiaries named in the will. In New South Wales, the entire process will be handled by the Supreme Court.

To honour the wishes of the deceased, as a general rule, probate is required if they had a will before passing away. The organisation managing the assets on behalf of the deceased person decides whether the beneficiaries should get a Grant of Probate before they release the assets. Different organisations (e.g., banks and share registries) have varying deceased estate transfer policies, so beneficiaries must check with them.

However, in some cases, a probate may not be required. Below are the general criteria for determining whether or not probate is required.

When is probate required?

When is probate required in NSW? First, you have to determine the ownership structure of the properties left by the deceased. A Grand of Probate is most likely needed if the deceased is registered as a sole proprietor.

Whether probate is required or not can also be determined by the asset type. If the deceased person has the following assets, probate is required by the state.

1. Land or House

Transferring real estate entails going through the legal process of probate. The executor must apply for probate through the state’s Supreme Court, and then, once the probate is granted, they can distribute the assets to the beneficiaries.

Exceptions may apply if the real estate is owned as joint tenants with another person. In this case, the property automatically goes to the surviving joint tenant. However, if the real estate is owned as tenants in common, probate is required to determine the shares.

2. Bank Accounts with Substantial Balance

If the deceased person has bank accounts exceeding approximately $50,000, it is required to apply for probate. The amount varies per bank, but $50,000 is the average threshold.

3. Substantial Shareholdings

Applying for probate is also necessary if the deceased person has shareholdings exceeding $15,000. Registries may require the shares to be directly transferred to the beneficiaries or sold as part of estate administration.

4. Substantial Superannuation Assets

If a person passes away with a substantial superannuation balance, the beneficiaries will go through probate to ensure the correct distribution. This will be based on the deceased person’s will or intestacy rules.

When is probate not required?

When is probate not required in NSW? Generally, probate may not be required under the following conditions.

1. Jointly Owned Assets

Suppose the deceased jointly owns assets with another person. In that case, probate is typically not required to transfer the ownership, as it automatically goes to the other party under the “right of survivorship” principle.

As previously mentioned in the probate exception for real estate, for properties owned as joint tenants, the surviving person automatically inherits the estate. Similarly, bank accounts and investments owned with joint names go to the surviving person.

2. Insufficient Balance to Justify a Grant

If the deceased person does not have a substantial total value of assets and estates, probate may not be needed. For instance, if their bank account is below approximately $50,000, the bank may release the funds to the executor or next kin.

Determining whether probate is required or not for a deceased person’s assets in NSW is a complex process that requires careful consideration. Moreover, even when probate is not required, you may need to go through formal procedures, especially when disputes arise. To guide you in every step, getting help from trusted legal professionals is recommended. Through their expertise, facilitating the administration of an estate becomes easier.