Before looking at who is responsible for paying the fees associated with Probate, let’s first look at what Probate is. Probate is how a person proves and registers the final Will of a deceased person in the Supreme Court. You see, when someone dies, their estate, including assets and debts, need to be managed. The executor of the Will is a person nominated by the deceased person to act on their behalf. They need to be authorised to administer the estate after death. They gain this authority by applying to the Supreme court for a grant of Probate. A ‘grant of Probate’ proves that the executor is authorised to administer the Will.
Who Is Responsible For Paying For Probate?
Most of the time, the deceased’s bank can pay the filing fee for Probate. Your professional solicitor can contact the bank to ask for the money to cover the fee on your behalf. However, sometimes the deceased doesn’t leave enough money in their account to cover the costs. In that event, you may need to pay the filing fee with your funds, but you will usually be reimbursed from the estate as it is an expense incurred in the administration of the estate. Reimbursement will occur once Probate is granted and any assets sold.
What Are the Costs Associated With Probate?
There are several costs involved with filing for Probate in New South Wales. Filing fees are paid to the Supreme Court of NSW, while you’ll pay professional fees to your lawyer. Your solicitor will explain how the court filing fee and associated costs work according to the Legal Profession Uniform Law Application Regulations 2015. The fees for getting a first-time grant or reseal are set out in Schedule 3 of the Regulations. Estates, wills and will-disputes are dealt with by the Supreme Court of New South Wales.
When making your Probate application, you need:
- The death certificate.
- The valid Will and any codicils.
- The Probate.
- A summons for Probate signed by a lawyer.
- An inventory of property detailing the deceased person’s assets and liabilities.
- An affidavit from the executor of the estate.
Sometimes fees aren’t required when obtaining Probate. You don’t have to seek professional legal advice when applying for Probate, but most people tend to hire one because the process can be complicated.
Additional Costs To Filing Fees
Additional fees might need to be covered when filing for Probate because the process can be time-consuming, and there are several forms and administrative requirements with which to comply. For example, a solicitor’s professional costs may include things such as:
- Transportation or postage costs acquiring relevant documents.
- Obtaining the death certificate.
- Valuations of estate assets or property.
- Assistance in preparing documentation.
Costs can quickly rise, particularly for those executors who engage a solicitor or lawyer for legal advice through the process. Some estate lawyers offer fixed-fee probate services.
Who’s Responsible For Paying Legal Fees To Administer An Estate?
The general rule is that the estate is responsible for costs involved in its administration, including:
- Taking care of any of the deceased’s unpaid bills.
- Immediate funeral arrangements can cost anywhere from $5000 to $15000.
- Any ongoing fees or costs associated with specific assets.
- Finalising the deceased’s tax affairs.
With the numerous financial obligations involved in administering an estate, some executors consider obtaining legal advice an expense they can forego. However, engaging a professional estate lawyer can prove very valuable. A probate lawyer can:
Supply you with information about your responsibilities and your rights.
Help you obtain legal documents and comply with the requirements for applying for Probate.
Assist you in identifying, collecting and cataloguing the assets of the deceased.
Advise you on the legal order of debts. They can also advise how estate debts should be prioritised and paid off and how remaining assets should be distributed.
Explain the legalities of distribution order for the estate when there is no Will.
Assist you in preparing the statement of account and the report to present to the beneficiaries.
Help you deal with claims or disputes about the estate.
How Much Does An Estate Lawyer Cost?
Costs for legal assistance can vary from State to State and lawyer to lawyer. Just be clear about what legal help you want and what you expect them to do. Applying for Probate is only one task. If you require additional assistance with the estate, you will incur additional costs.
In New South Wales, the disclosed value of assets will determine what your probate lawyer costs. For example, you would pay around $560 plus $13.33 for every $1000 up to $30,000 plus GST if the disclosed value of assets is less than $30,000.
Some lawyers in Queensland and Victoria charge by the hour for services, including printing documents, postage and phone calls. Other solicitors take a percentage of the estate or charge fees according to complexity.
Western Australian fees vary from firm to firm. Some charge by the hour. Some change their rates according to how complex the case is, and others charge fixed fees for probate applications.
If a lawyer acts as the executor, they can claim an executor’s commission. This commission may equal about 3 to 5 per cent of the estate’s total value.
What Is Needed To Apply For A Grant Of Probate?
You must first apply to the Supreme Court of NSW to declare the deceased’s Will as a valid legal document. Once validated, the executor of the deceased’s estate can be gathered in, and liabilities paid before the estate is then distributed among the beneficiaries of the Will.
A probate application includes the preparation of the following essential documents:
- An online advertisement of intention to apply for Probate at least 14 days preceding the application being filed in the Court.
- The Court summons – a formal document to seek the grant of Probate.
- An affidavit or sworn statement signed by the estate executor includes everything relating to the deceased’s estate.
- The original death certificate and Will of the deceased filed with the Court.
Problems can arise if you can’t find the original Will. If you only have a copy of the Will, the Court determines that the deceased revoked their Will before their death and, therefore, did not leave a will. In this case, a Grant of Letters of Administration would need to be sought to administer the estate.
The executor can reverse the Court’s decision to supply sufficient evidence that the Will was not revoked and that the copy at hand is the authentic replica of the deceased’s last Will. If the evidence satisfies the Court, the document may be used until the original is found.
Probate Is Not Always Needed
Sometimes Probate is not required, for example:
Where the deceased person owns assets held as ‘joint tenants’ with someone else, those assets pass directly to the surviving individual. As a result, the property doesn’t form part of the deceased’s estate. However, property owned as ‘tenants in common’ by the deceased and another individual is dealt with differently to property held as ‘joint tenants’ and, therefore, forms part of the deceased’s estate with their share passing on to beneficiaries of the Will.
When the deceased’s Estate assets are low in value, the executor can usually avoid applying for the usual Probate grant. However, the executor may need to indemnify the asset holder against possible claims made by beneficiaries, creditors or other executors. The threshold amounts that can be transferred without a grant of Probate differ from one financial institution to another.
Where there is no Will, or if a Will cannot be located or is invalid, it is not necessary to apply for a grant of Probate. Instead, an application for letters of administration is required.
Frequently Asked Questions
1. What if there is no Will?
If a loved one dies without a Will or intestate, benefactors and the estate must be validated with letters of administration rather than a grant of Probate.
2. What are requisitions from the Supreme Court of NSW?
Requisitions are notices informing you that you haven’t met all of the requirements as per the Supreme Court Act (NSW) and the Probate and Administration Act. The executor must address issues raised in the requisitions by providing amended documents and any additional documents necessary to obtain Probate successfully.
3. Can I obtain Probate in another state if the deceased left assets in another state?
You can’t obtain Probate in NSW if there are no assets held in NSW. You should apply for Probate in the state where the assets are held.
4. Can I go ahead with Probate if the Will isn’t signed?
If the Court is satisfied the document was intended to be the deceased’s last Will, you can continue. However, if the Court isn’t satisfied, the record won’t be admitted, in which case you will need to apply for Letters of Administration.
5. Can I end up being responsible for paying someone else’s legal bill?
Situations where it is necessary to decide who is responsible for paying estate lawyer fees and disbursements of the court case usually involve a claim or dispute against the estate or proving whether a will is valid or not.
Generally, each party would be responsible for its legal fees. However, where the matter is brought to Court, the Court decides who pays. In this situation, if the party claiming against the estate is successful, the estate may need to cover part or all of the other party’s legally incurred expenses. Conversely, where the claim is unsuccessful, the other party may be required to pay a significant portion of the estate’s legal costs along with their fees.
Sometimes people can enter into an arrangement with their lawyer called a ‘no-win, no fee arrangement. In this situation, they don’t need to pay the legal fees unless the claim is successful and the settlement is sufficient to cover the legal expenses.