Please call us at , or email us at info myattandbell. If your loved one had any assets, we will draft a Probate Petition and, if needed, work with a bonding company to purchase a bond that the court may require. Once finalized and signed, we will file the Probate Petition with the court in the county where your loved one lived. The petition will provide information about your loved one, information about their heirs, and their assets.
Additionally, the petition will ask the court to issue Letters Testamentary. The court will then approve the petition and grant Letters Testamentary. Meanwhile, we will prepare and publish a notice in the newspaper informing the public that your loved one has passed. This is required in Oregon, because it gives creditors a chance to come forward and make their claims against the estate.
The original will and codicils must be filed with the probate application and will be retained by the Court.
Step-by-Step Guide to Opening a Probate Estate
To be valid a will or codicil must be in writing and signed by the testator and by two witnesses and be verified that the will is not a carbon or photocopy. If you cannot find the original will but have found a copy, or if the will is unsigned or has not been properly witnessed, it may still be possible to apply for probate. See further information below.
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If the will is undated, evidence will need to be provided as to when the will was executed. This will be particularly important if there is another will to establish which was the last-made will. An affidavit by an attesting witness, or from such other persons who may have relevant information as to the date the will was made, or narrowing down the possible range of dates when the will was made, should be provided. An affidavit of an attesting witness will also be appropriate if there is any doubt as to the proper execution and witnessing of the will. If the will has any hand-written amendments that do not appear to have been initialled by the testator and the witnesses, an affidavit of attesting witness as to whether those amendments were made before the will was executed will normally be required.
Affidavit evidence may also be required if it appears that other documents were attached to the will at some time and that those documents have subsequently been removed, or if the will has been torn or otherwise defaced since it was executed. A codicil is a document that amends, rather than replaces, a previously executed will. If the testator has made a codicil, or codicils, to the will, the application for probate will be for probate of the will and the codicil s. Amendments made by a codicil may add or revoke small provisions or may completely change the majority, or all, of the gifts under the will.
A codicil may vary or replace the executors named in the original will. If the original will cannot be found but there is a copy of a will which is believed to be the last will of the deceased then the executor named in the copy will may be able to apply for probate on the copy of the will. The actual copy of the will needs to be filed with the probate application. The affidavit of executor will need to explain where the copy of the will was found and set out all the searches that have been made for the original will of which the will is a copy or any later will that the deceased may have made.
Such searches must at least include searches through the deceased's personal papers and effects, searches at any solicitors the deceased may have used, any banks used by the deceased and the NSW Trustee and Guardian.
If the copy shows that the original will was prepared by a solicitor then enquiries should be made with the relevant firm of solicitors to check that they do not have the original will, and as to what their usual practice was when wills were prepared for their clients ie whether they normally held the originals in safe custody or gave the original to the client.
If the will was last held by a solicitor then an affidavit by the solicitor or somebody in that solicitor's firm should be provided as to the searches that they have undertaken for the original will. If the evidence suggests that the original will was last in the possession of the deceased then there is a presumption that the deceased revoked the will by destroying the original will.
To rebut this presumption, the application will need to be supported by evidence which can be included in the affidavit of executor to the extent that the executor can provide this evidence that goes to prove that the deceased did not intend to revoke the will.
Such evidence can include conversations the deceased may have had in relation to his or her will, but could also include evidence as to there being no substantial change of circumstances since the will was originally made that may have led to an expectation that the deceased may have changed their will. The affidavit of executor will also need to set out who would be entitled under intestacy ie if there was no will. If the people that would be entitled under intestacy are different from the beneficiaries under the copy will then it will be necessary to either obtain the consents of those persons who will be adversely affected if a grant of probate is made in relation to the copy will, or to prove that they have at least been served with notice of the application.
A grant of probate on a copy of a will is a limited grant. Although in most cases the original will is unlikely to be found the grant is limited until the original will is found and an application for a grant of probate of the original will is made. In the summons for probate UCPR Form this is to be included in the "relief claimed" section of the form:. Qualifications or limitations on the grant: Until the Original will is found and proved.
Probate of a copy of the will: Limited until the original will is found and proved. In the affidavit of executor the executor should include an additional paragraph giving an undertaking to produce the original will to the Court if and when it is found and to apply for a grant of probate of the original will if the estate has not been fully administered. It is a formal requirement of a will that it be signed by the testator and that it be witnessed by two witnesses who both saw the testator sign. Nevertheless the Court may grant probate in relation to a will that does not meet these formal requirements if it can be satisfied that the document was intended by the deceased to be their will.
If an application for probate is being made in relation to an informal will, the summons UCPR Form must include an additional claim for an order in addition to the grant of probate that the Court make a declaration under Section 8 of the Succession Act that the informal will constituted the last will of the deceased. The affidavit of executor will need to disclose if there is an earlier will that would take effect if the informal will is held not to be operative.
If there is no earlier will that would take effect, the affidavit of executor will also need to set out who would be entitled under intestacy. If the people that would be entitled under intestacy are different from the beneficiaries under the informal will then it will be necessary to either obtain the consents of those persons who will be adversely affected if a grant is made in relation to the informal will, or to prove that they have at least been served with notice of the application.
A person with an interest in the estate of a deceased person can file a document called a caveat which prevents the Court from issuing a grant in relation to the estate. A caveat remains in force for 6 months from the date on which it is filed. The caveat must be served on any known applicants or potential applicants for a grant of probate or administration of the estate.
The Court will not stop making a grant in relation to a pending application simply because someone with a potential interest writes a letter or calls the Registry. The reasons a caveat is filed include where someone wants to challenge the validity of a will, which may be an informal will or a will that appears to be valid but where there is a claim that the will is a forgery or that there is doubt as to the testamentary capacity of the testator, or a claim that the will was executed under undue pressure.
There may be circumstances where there are two or more possible wills naming different executors.
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An executor that wants to proceed with an application for a grant of probate can apply to the Court for a caveat to be removed if they believe that the caveator has no standing or that there is no real dispute as to the validity of the will. Alternatively, if there is doubt as to the validity of a will, contested proceedings can be commenced for probate to be granted in solemn form. Such proceedings are commenced by statement of claim. An application for a grant in solemn form is determined by a judge rather than a registrar. The person or persons applying for a grant of probate must be an executor appointed under the will and over the age of 18 years.
If the applicant is not the instituted executor the conditions for being appointed as a substituted executor must have been met.
Before applying for a grant of probate you must publish an online notice of your intention to apply for a grant on the New South Wales Online Registry. You must wait at least 14 days from the date of publication to file your summons for probate.
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A case number will be issued to you when your notice is published. This number should be inserted on your summons for probate and referred to when contacting the Court Registry. The purpose of publishing your notice of intended application is to allow the deceased's creditors an opportunity to make a claim on the estate by contacting the person who is intending to apply for the grant of probate.
Relatives of the deceased may also be able to make a family provision claim against the personal representative of the estate under Chapter 3 of the Succession Act A notice of intended application also gives notice to anybody that may intend to challenge the validity of the will or who may have knowledge of a later or alternate will.
The following qualification should be included in the notice of intention to apply if applicable:.
An Overview of Informal Probate
This information is not intended to be a substitute for legal advice. This kit is designed to help you with a simple application for a grant of probate. This information does not cover all the various situations that can arise when applying for a grant of probate and the information and documents that may be required in the application may vary from case to case. The forms in this kit are precedents and intended to be downloaded and edited to insert relevant information and to delete any instructions or inapplicable words before printing.
You cannot submit these forms electronically. They must be printed out, signed and witnessed as necessary, and lodged at or posted to the Registry with payment of the filing fee if applicable. If you are unsure of whether you need to, or are entitled to, apply for a grant of probate in New South Wales, please seek legal advice from a qualified solicitor. If you have difficulty completing the forms or need further guidance, please contact us by email.
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