Step 1 – obtaining the deceased’s original will (or a copy)

The most recent original will of the deceased is required for the purposes of applying for probate. If there are numerous wills then issues may arise in in relation to the testamentary capacity of the deceased when he or she made their most recent will.

If the original will cannot be located a copy of the will can be used for the purposes of applying for probate. If you are relying on a copy you will need to give reasons why the original cannot be located and affidavit evidence sufficient to persuade the court that the deceased did not revoke the original will that cannot be located by tearing it up or burning it.

Step 2 – Identification of property forming part of the Estate

Estate property is limited to property owned by the deceased as at the date of death. Property not forming part of the deceased’s estate includes:

  • jointly held property – such property vests in the person or persons who held the property jointly with the deceased;
  • property held by in a company/trust – property held in a company/trust does not form part of the deceased’s estate. However, if the deceased made a loan to the company/trust or has an unpaid entitlement (eg dividends or trust distributions) the such property forms part of the deceased’s estate;
  • superannuation/life insurance – the deceased’s interest in their superannuation fund or in a life policy is usually dealt with separately by the deceased nominating a person(s) who take the deceased’s interest. The executor will need to check with the trustee of the deceased’s super fund and the life insurer to verify the that the deceased has not nominated his or her estate as the beneficiary of their superannuation fund or their life policy; 

Step 3 – Verifying the tax profile of each Estate asset for capital gains tax purposes

Generally, there is no capital gain tax (CGT) arising from a transfer of an estate asset to a beneficiary.  Instead, any CGT only crystallises when the beneficiary disposes of the estate asset gifted to them under the will.  The estate may have a CGT liability if assets have to be sold to pay testamentary debts or to fund legacies provided for in the will. It is therefore important to know the date the estate asset gifted by the deceased in his or her will was acquired (acquisition date) and the amount paid by the deceased for the asset (cost base of the asset).

Step 4 – publication of the notice of intention to make an application for probate

This notice is published on line at https://onlineregistry.lawlink.nsw.gov.au and is given for the purpose of identifying the will of the deceased as their last will to be admitted for obtaining probate.  The notice must be given at least 14 days before an application for probate can be made.

Step 5 – drafting the application for probate preparing an inventory of estate assets

The application for probate is supported by an affidavit from the Executor in a form prescribed by the court and annexed to it is the Inventory of Estate assets owned by the deceased as at the date of death, identifying each asset and the estimate of the market value of the asset as at the date of death.

Step 6 – obtaining the Grant

The last step is obtaining the Grant of Probate which is a court document enclosing a copy of the will of the deceased and the Inventory of Property which is then used in the course of administration of the Estate.

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