07 October 2016
Hi,
I have sought confirmation from the solicitor acting for an estate that probate will be applied for however that has not been forthcoming to date. Is there a shortcut application or holding application that can be made in NSW to protect my client's interests in the event probate is not applied for?
Thanks.
Thank you for the question.
Section 75 Proceeding where executor neglects to prove will, Probate and Administration Act, provides:
(1) In any case where the executor named in a will:
(a) neglects or refuses to prove the same or to renounce probate thereof within three months from the death of the testator or from the time of such executor attaining the age of eighteen years, or
(b) is unknown or cannot be found,
the Court may upon the application of:
(i) any person interested in the estate, or
(ii) the NSW Trustee or a trustee company, or
(iii) any creditor of the testator,
order that probate of the said will be granted to such executor or order that administration with such will annexed be granted to the applicant or make such other order for the administration of the estate as appears just.
Based on the facts before you, write to the estate’s solicitor putting them on notice that you have instructions to take out a grant for letters of administration with the will annexed. This will usually spur the estate into action and they will make the application, thus saving your client trouble and expenses. If the estate does not act quickly, make the application for a grant promptly.
Regards
Mentor
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