Probate is often one of the first legal steps after someone passes away. It’s the process of proving that a Will is valid and gives the executor the authority to deal with the estate. This includes the authority to collect the assets of the estate and distribute them among the beneficiaries under the Will. As executors are often new to this process, it’s common for them to ask how long the probate process takes.

In this blog, we look at the process of probate, including:

• timeframes;
• application requirements;
• what might cause delays;
• ways to speed up the process, and more.

How long does probate usually take?

As a general guide, it takes around 4 to 8 weeks from the time the application for a Grant of Probate has been lodged with the Court for it to be processed. This is assuming everything is in order. These processing times can fluctuate depending on the number of applications the Court is processing at the time. The Court publishes current processing times on its website.

However, the above timeframe is only for the Grant of Probate to be issued, which is just one part of the estate administration process.

From start to finish of the estate administration process, it can take anywhere from 6 to 12 months (and sometimes it can take longer, depending on the complexity of the estate) to fully administer an estate. That includes:

• obtaining the information required for the application for the Grant of Probate;
• obtaining the Grant of Probate;
• collecting the assets of the estate and sometimes arranging for their sale;
• paying any outstanding debts; and
• distributing the estate to the beneficiaries.

What is required for an application for probate?

Before an application for a Grant of Probate can be made to the Supreme Court, the executor (with the assistance of their solicitors) must:

1. Locate the original Will and obtain the death certificate.
2. Identify the estate assets and liabilities: It is essential to get a clear picture of what the deceased owned (bank accounts, property, shares, superannuation, etc.) and any debts. Often, this will include contacting the various asset bodies to understand the value of the assets as at date of death. This helps determine whether probate is required and the steps required to administer the assets later.
3. Advertise the intention to apply for probate: In NSW, the executor must publish a notice of their intention to apply for probate on the NSW Supreme Court Online Registry. This gives creditors and other interested parties at least 14 days to come forward before you lodge the application.
4. Prepare and lodge the probate application: This includes several key documents:
   1. Summons for Probate;
   2. Affidavit of Executor;
   3. Original Will and death certificate;
   4. Inventory of property.
5. The executor can then file the application with the Supreme Court of NSW.

What causes delays in probate?

While some probate applications sail through smoothly, others hit a few bumps. Here are the most common reasons probate gets delayed:

Missing or incorrect documents

Something as simple as a typo in the Will, a missing signature, or an error in one of the documents being filed can hold a probate application up.

Disputes over the Will

If someone contests the validity of the Will, or there are disputes among executors or against the estate, the probate application process can be delayed until the dispute is resolved.

Complex estates

Multiple properties, business interests, or overseas assets can take more time to ascertain the assets of the estate.

Difficulty locating executors or beneficiaries

If an executor cannot be located or cannot contact a beneficiary, it can delay preparation of the application.

Tips to speed up the probate process

While some delays are unavoidable, executors can take proactive steps to keep things moving:

Get legal advice early

A probate lawyer can help ensure all documents are in order and guide you through the application process so that the application is completed correctly the first time.

Organise documents promptly

Locate the original Will, obtain the death certificate, and compile a list of assets and liabilities as soon as possible.

Use a professional to prepare the application

Probate rules vary between states and territories, and courts require strict compliance. A professionally prepared application is less likely to be rejected or delayed.

Advertise promptly

The court requires a minimum notice period of 14 days, so it can help to commence early.

Communicate with beneficiaries

Keeping everyone informed (beneficiaries, guardians, co-executors) can help to limit misunderstandings and disputes down the track.

Is probate always necessary?

It is not always necessary to obtain a Grant of Probate to administer the assets of the estate. Whether a Grant of Probate is required depends on:

1. the size and type of assets in the estate;
2. who owns the assets (e.g. joint vs sole ownership);
3. requirements of banks or other asset holders.

More information can be found in our earlier blog, “When do you have to get a Grant of Probate?”

I have obtained probate; now what?

Obtaining probate gives the executor the legal authority to manage and finalise the deceased person’s estate, and administer the estate. This includes:

1. Collect the estate’s assets – Once probate is obtained, the executor can contact banks, share registries and superannuation funds, sell or transmit property, and deal with other institutions to access or transfer the deceased’s assets.
2. Pay debts and liabilities – Before distributing anything to beneficiaries, the executor must ensure all debts and expenses are paid.
3. Finalise any final tax returns or any estate tax returns – If the executor distributes estate assets prior to finalising tax returns, they can be personally liable to the ATO for any tax payable.
4. Distribute the estate to beneficiaries – The steps required to achieve this will depend on the gifts under the Will.
5. Keep records and finalise the estate.

A solicitor and professionals can assist in guiding the executor through the steps required to achieve this.

Get help from a lawyer experienced in probate

Probate is not always a quick process, but it is a necessary one to ensure the estate is handled properly. Knowing what to expect (and what might cause delays) can help reduce stress and give you a clearer path forward.

Speaking with a lawyer experienced in probate and deceased estates can help you navigate the legal and financial complexities of acting as an executor.

E&A Lawyers have a dedicated and experienced probate and estates team who can help you. For more information or to arrange a consultation with a lawyer, you can call or email us.

Contacting E&A Lawyers

For more information or to arrange a consultation with a lawyer, you can call or email us.

📞  02 9997 2111

📧  info@ealawyers.com.au

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• Executor duties when dealing with property of a deceased estate
• Risks of DIY probate
• Can I sell property of a deceased estate before probate is granted?