LEC 11: PROBATE & LOA

Probate – Executor

  • Letters of Administration – Administrator
  • General term – personal legal representative
  • NSW Sup Ct has power to grant probate or admin: s40-40A Probate and Administration Act 1898
  • Also has power to grant admin to allow family provision claim (whether or not Dec has left prop in NSW): 91SA

PROBATE

What is probate?

Probate means the proving of the will i.e.

oCt has deemed that Will is proof of the testator/testatrix’s intentions AND

oAdministration has been granted to the Exec

  • Exec will obtain:
  • Title to Dec’s property; AND
  • Authority to deal with Dec’s estate.

When to apply for probate?

WHEN: after the death of a person where the deceased person has left a will and property (real or personal) in NSW.

Where T owned NSW RP or certain other substantial assets not held in JT – MUST apply for probate

oWhen assets are JT, the right of survivorship gives the surviving JT the right to ownership of the property – in the case of RP, to be registered as sole registered proprietor: s101 Real Property Act 1900 (NSW)  NO probate needed

Before applying:

Will:

  • Not obliged to do formal reading – but Bens or Dec’s family have right to inspect Will: s54 SA
  • Check date of Will and date of death – relevant for whether SA or WPA applies.
  • Check Will execution
  • Note any irregularity – may require Aff of attesting Wit
  • Ask Exec to identify Dec’s signature
  • Check any codicil, revocation, alteration, revivial – complies with formal requirements of SA
  • Check Wit is not a Ben – if so, advise VOID.
  • Check for intestacy

Is there another will? The will admitted to probate should be the testator’s last will

  • If YES, did another sol act for Dec? Have they checked Dec’s papers? Where would Will be found? Bank deposit box, NSW Trustee, Wills Registry, Sup Ct Registry for Ct made wills or deposited wills (s51 SA)

Executor

Is Exec willing and able to act?

oIf overseas/interstate, may have to renounce probate.

  • Do they mental/physical capacity to act (age and intellectual ability)?

oIf NO, Exec must sign renunciation of probate

Record name, address, occupation, phone number of each Exec

  • Death of exec:
  • If sole Exec predeceased – apply for LOA cta (with the will annexed)
  • If 1+ Exec predeceased – attach death certs to Aff of Exec

Assets/Liabilities

Solicitor should establish the requirements for release of each asset into Exec and Ben’s names (evidence)

Obtain information about:

  • RP – address, title, improvements, interest, estimated value, Mgee,
  • Furniture, watches, jewellery – location
  • Bank and investment accounts – institution, branch, account no, account type
  • Life policies – life assurance comp, policy no, sum assured, proposer, life assured, any bonuses
  • Super – fund, account number, balance at death, any nomination
  • Money owed by employer – unpaid wages, holiday pay, long service leave, super, PAYG statement
  • Shares – company, number/class of shares, any dividend or bonus
  • Debentures and gov stock – comp/gov authority, amount, interest/maturity, interest paid
  • MVs – make, type, rego number, estimated valued
  • Medicare/health benefits refund – amount of any refund payable
  • Taxation credit
  • Date of acquisition of assets – which may raise CGT
  • Liabilities – date, Cred, nature of liability, amount, sec/unsec

Beneficiaries:

Details of beneficiaries – name, address, date of birth.

  • Advise:
  • Bens must survive by 30 days
  • Contingencies (eg. attaining certain age) and vesting on event (eg. death of life tenant)
  • If Ben predecease, but leave issue who survive
  • LPR’s power to make maintenance distributions to dependent Bens: s92 PAA
  • LPR’s power to make distribution providing things immediately nec for maintenance/education of eligible person who was wholly/substantially dependent on Dec: s94 SA
  • Gifts to religious/charitable institution

Death:

  • Date, time, place
  • Date critical for whether SA or WPA applies, grant application, when Ben becomes entitled to disposition
  • Age of Dec
  • Cause of death
  • Funeral director + expenses

Whether Dec Exec/Trustee

  • Ask if Dec was sole/surviving Executor of estate of any other deceased person – advise re Exec as Exec by representation (chain of representation)
  • Ask if Dec held prop as Tee

The Application for Probate

Procedure: Pt 78 Supreme Court Rules NSW 1970, as follows:

Advertise the application for a grant in: Rule 10

Summons in the proper form setting out the required details

Affidavit of Exec, annexing death certificate of testator (or providing other proof of death if necessary)

Will – usually as a stand-alone document

Notice of Intended Application: Rule 10

•Publish: r 10(1) SCR

•If Dec reside in NSW – newspaper in Dec’s district/local paper

•If Dec reside outside NSW - a Sydney daily newspaper

•Contents:

•Must state the date of the will & any codicil sought to be proved

•Must state any variation in Dec’s name

•Should state Dec’s occupation

•Can only file summons/affs 14 clear days after publication of notice

•If ad is older than 6 mths – Ct may require further ads: r 10(5) SCR

•Form of notice: Form 92 SCR

In the Supreme Court of New South Wales

Probate Division

After 14 days from publication of this notice an application for probate of the will dated X day of X 20XX of (full name of testator) late of (testator’s address & occupation) will be made by (name of applicant). Creditors are required to send particulars of claims upon the estate to (applicant/applicant’s lawyers at specified address)

Summons for Probate: Rule 8 SCR

  • Form 111 UCPR
  • Can only file 14 clear days after publication of notice
  • May only be signed in name of Sol with unrestricted PC: r 7.1(6) UCPR. But may be signed on behalf of Sol by a partner/employee/agent of Sol: r 4.4 UCPR.

Set out: req by r3(2)(b)(ii)

The deceased’s name (usual name)– any variation from the will or death certificate should be explained

oOther details of Dec – suburb residence/occupation

Exec’s name:

  • Must be bolded: r 4.3(3A) UCPR
  • Full names – unless 2+, then just full name of 1st Exec and no of other Execs.

Exec’s capacity: usually named in Will

  • If 1+ Execs renounced – must explain
  • If substitute Exec – must explain

The plaintiff’s contact details + address for service (must be in NSW: r 4.5 UCPR). Sol’s details if rep.

The date of death

The gross & net value of the estate

The number of pages in the will

Details of the solicitor acting

Relief claimed – Probate of the will be granted.

Affidavit of the executor: Form 97 SCR

Include:

1.Executor’s full address:

  • If not same as Will – explain: r13 SCR

2.Existence of Will:

Whether there are any codicils

Whether there are any other testamentary instruments (didn’t comply with formal req of SA). If so, write “except for” at end, then describe instrument.

  • COL has more details – need to comply with formalities

3.How Executor can identify the will (see below)

4.Who are the attesting witnesses (see below)

5.Proof of death & deceased’s age at death

  • Annex copy of death certificate – even if cause of death unknown
  • Or identify body (separate Aff of person not interested in estate): r 23B SCR
  • I was well acquainted with DEC….
  • I saw her death body on the day she died, that is…. (later date not possible)
  • I am not interested in her estate.

6.That Dec did not marry after executing the will

  • If married after Will after 1/11/1989-1/3/2008: Will void under s15 WPAA unless made in contemplation of marriage
  • If Will/married post 1/3/2008: s12 applies.

7.That Dec held assets in NSW (Ct has juris): s40 PAA

8.That Execs are those named in the will AND 18 yo+.

If multiple Execs: We are the executors named in the will…

  • If not all Execs: I and (name) are the executors named in the will…

Sole Exec under 18 cannot apply – someone with capacity (guardian)applies for LOA cum testamento annexo – will annexed until minor turns 18 and applies for probate: s70 PAA

  • If minor NOT sole Exec – other Execs can apply with leave reserved to minor to obtain probate upon turning 18: s41 PAA

9.If 1 of several Execs isn’t joining application

  • Predec Dec or after (without probate) – state and annex death cert: r 23B SCR
  • Renounce probate – state (r 24(2)(a) SCR), depose and file Aff of Renunciation (Form 94, r 14(2) SCR, r 24(2)(b) SCR).

10.That, if granted probate, Exec will administer the estate according to law + render just/true account of administration to Ct within 12 mths

  • If dead before 31 Dec 1981 – special para (see COL)

11.That notice of the application was published in a newspaper where the deceased lived – annex newspaper tear sheet

12.Who the beneficiaries are:

  • If whole/partial intestacy – Exec must give evidence as to matters relevant why Will is inoperative (wholly/partly) and list of persons who would be entitled on intestacy: Part 78 rule 23 SCR
  • List even if Ben of specific gift adeemed by enduring POA – cos Ben can be entitled to equiv value of that property: s 22 Powers of Attorney 2003

13.Lists the deceased’s assets - Inventory

14.Lists the deceased’s liabilities

15.States the gross & net value of the estate

  • Ignore joint property and any property not part of estate
  • Net is gross minus liabilities

16.That Exec are not aware of any circumstances which would raise a doubt as to their right to a grant of probate

  • Raise any issues (eg. Exec convicted of felonious crime) – but note insolvency is not an issue (R v Raines (1698)
  • Eg. another Will exists or termination of marriage

3. Identifying the will

Executor may be able to identify the will as being that of the deceased by:

Recognition of the deceased’s handwriting

Having been present when the testator signed the will

Having drafted or assisted in drafting the will

4. Attesting witnesses

Gen: sufficient attestation – no need to get Aff of attesting Wit: Probate Rules r 15

If Will contains insufficient or no attestation, an Aff of attesting witnesses will be required (Pt 78, rule 15 SCR)

  • Aff states – Wit did witness the will the subject of the application for a grant of probate.
  • Must attach ORIG will

If attesting witnesses have predeceased Dec or cannot be found, the Plaintiff must provide evidence for inability and of identity of the signature of the testator or witnesses. (Pt 78, rule 15(4) SCR)

  • If Testator blind/illiterate or directed signing – need further Aff: r 16 SCR

5. Where there is no body...

CL: must wait 7 yrs before grant made

BUT:presumption of death

 S40A PA Act: ‘Where the court is satisfied that any person is dead, the Court shall have jurisdiction to grant probate ...notwithstanding that it may subsequently appear that the person was living at the date of the grant.’

Ct must have evidence – when Dec was last heard from, whether they were old, infirm, ill, exposed to peril (Mackay v Mackay (1901).

Presumption is one of fact & may only be applied where all the circumstances show that the absence & silence of the person is due to death & not any other cause (Re Wallace (1908)

13/14. Listing the Assets & Liabilities: Form 96 SCR (inventory)

Value of assets is ascertained at date of death

  • Estimates are acceptable – even of RP

oInterest on bank accounts after death is not included

  • Shares: look up share price index in Financial Review to estimate
  • If not sure – “yet to be assessed”

Assets NOT included:

oLife tenancies – a right to possession

oJoint tenancy (but still put into separate table)

oProperty held by as trustee

oImmovable property outside NSW

oSuperannuation, life ins. if not paid to executor (but still put into separate table or footnote)

A TFN must be obtained in the name of the estate, if a tax return is required to be lodged for the period between death & distribution – earning income/interest through estate

Liabilities:

oSecured/unsecured - council rates are secured liability

Swearing Aff:

Exec and Wit must sign attestation cl on last page and bottom of every page.: r 35.7B UCPR

  • Wit also signs annexed death cert and tear sheet of notice (all annexures)
  • Exec and Wit also signed annexed inventory and margin of Will.

Renunciation of probate

Can renounce probate: s69 PAA using Form 94

Renunciation may be general or in favour of the NSW Trustee

  • If to NSW Trustee (or sole Exec renounce) – then LOA may be granted with Will annexed.

Aff of Additional Assets: s81A(2) PAA; r 28A SCR

  • After filing probate/admin – if you become aware of further assets/liabilities, must disclose to Ct (via Aff of Additional Assets) in Form 106A SCR.

Aff of Delay: Part 78 Rule 11 SCR

If proceedings for grant not commenced within 6 mths after death – P must file aff explaining delay.

Aff of Search: Pt 78 r 24(1)(d) SCR

• If Dec died before 1 Jan 1989 – aff of search required: I have today searched in the registry and have found no evi of prior application for probate or administration or resealing in the estate having been made.

•Search is made at registry:

  • Searches Dec’s name in index of grants, matters pending book, and misc register from DOD to present
  • If no results, do Aff and file Summons.

Filing

Docs filed @ docs lodgement office at Sup Ct or posted with request to file: r 4.10(1) UCPR

  • Summons UCPR 111
  • Draft Grant UCPR 112
  • Executor’s Aff (SCR form 97) including annexures:
  • Tear sheet from newspaper (SCR Form 91)
  • Inventory of assets (SCR Form 96)
  • Original death certificate
  • English translation of any foreign death certificate
  • English translation of the Will and any Codicils
  • Original Will and any codicils
  • Will usually filed as independent doc (not annexure) UNLESS Aff of attesting witness (Will not sufficiently attested: rule 15(1) and 16 SCR)
  • Exec and Wit signs Will margin
  • 2 x stapled copies of draft grant, will, codicils, inventory, translation
  • Stamped + self addressed A4 envelop

Filing fees based on the gross value of Estate: calculated with Civil Procedure Regulation 2005 Sch 1 Pt 1 item 4.

Equity Division, Probate List

Registrar may raise requisitions

After the Grant

If problems  requisitions raised (usually need more Aff evidence)

Sealed probate is evidence of:

oThe grant

oThe death of the deceased

oThe terms of the deceased’s will and

oThe property in the estate & liabilities

Probate can be produced (as req) to facilitate transfer of assets

Will and grant become public records – copies available with $50 fee

  • Other docs are confidential – only examine by Bens, legal personal rep and sols acting for <
  • Originals are kept in storage (not returned to Applicant) – so best to submit cert copies of birth, marriage etc certs.

Duties of Exec:

  • Duty to body (Williams v Williams (1882)) – right to possession (Donaghty v Carrol (1919)
  • Calma v Sesar [1992]: dispute between natural/foster parents of Dec child. Held natural parents had right to bury.
  • Duty to realise the assets and distribute them within 12 mths of death or reinvest them (Grayburn v Clarkson (1868)):
  • Do not reinvest in account which is not “at call” unless Ben instructs.
  • Power to postpone sale of property where beneficial – must be good grounds and in interest of all Bens (King v Berndt (1902).
  • Sometimes, power to postpone conversion of investments (Re Norrington (1879)) – not liable for loss suffered if they acted honestly and prudently in bests interest of estate.
  • Duty to promptly collect the debts – or will be liable for any loss bcos of neglect: (Re Brogden (1888) and Re Greenwood (1911)).

Costs

Costs – lump sum until grant

  • Regulated and depend on estate value: s 329(1)(e) LPA 2004 and reg 114 and Sch 4 LPR 2005
  • BUT: costs of administration are NOT regulated
  • Still need to be disclosed.
  • Describe the work as: “costs of and incidental to obtaining a grant of probate, including the disclosure of assets and liabilities and the uplifting [receiving & checking] of the Grant of Probate”.
  • Any additional work (eg. To locate Will etc) – charged at Sol’s usually hrly rate (must disclose to client)

Probate cf Letters of Administration

  • Appointment of executors by will:
  • Power derives from will and grant
  • Appointment of executor usually conclusive
  • Powers of executor may go beyond those accorded by law
  • Chain of representation upon death of Ex/or
  • No bond
  • Appointment of administrator by court:
  • Power derives from grant of L of A
  • Person appointed may not be someone whom deceased might appoint
  • No chain of representation
  • Powers necessarily defined by law (limited)
  • New grant must be obtained on death of administrator
  • Bond & sureties may be required

When to apply for a grant of Letters of Administration

  • S74 Probate & Administration Act 1898: Ct may appoint Admin where a person dies:
  • Intestate (without leaving a will)
  • Leaving a will, but not having appointed Exec
  • Leaving a will with Exec but Exec:
  • Is not willing or able to take probate or
  • Is resident outside NSW (maybe overcome if Sol is in NSW, using firms’ address for service)

Who may be appointed Admin?

Ct may grant administration to (NOT a minor): s63

  • Spouse of the deceased
  • 1+ next of kin
  • Spouse of 1+ next of kin,

Or, if no such person or no person within jurisdiction:

  • That Ct thinks fit to be trusted;
  • That complies with requirement of rules or Ct direction.

THEN, Ct may appoint:

  • Any person Ct thinks fit (whether a Cred or not)

NOTE:

  • “Next of kin”: next in degree of kindred to Dec and Ben
  • If sole Exec is minor: Ct will grant probate to guardian until Exec turns 18: s70 PAA

•Guardian has limited powers

•Bond (for whole value of estate) usually has to be lodged

  • Where dispute – grant will usually follow interest (go to person with majority interest in estate)
  • Usually cost to Estate to apply for administration – usually try to get Bens to agree on administrator.
  • Where admin applicant is out of juris – can appoint A to apply on behalf: s72 PA

Bonds

  • Every person given Admin must execute bond with sureties: s64(1)
  • Amount – amount under which property of Dec is sworn: s65
  • BUT Ct may dispense with bond/sureties: s65 – if all Bens consent and unsecured debts paid
  • Evidence for reduction/dispensation should be set out in Exec Aff
  • If NOT dispensed with
  • but some Bens agree or some debts paid – Ct may agree to reduce bond
  • Applicant must file bond sufficient to cover Ben and unsec Cred interests
  • 2 sureties should be within juris and must show (by aff) that they have property to cover bond amt (eg. NOT prop like cars, boats, shares, furniture or JT property)

Purpose of Intestacy Rules: Ch 4 Succession Act