A Brief Overview of Probate in NSW

In NSW, a named executor may apply to the Supreme Court for a grant of probate.

If granted, the grant of probate will give the executor the legal authority to administer and distribute the deceased estate in accordance with the terms of the deceased’s will. Executors must apply for a grant of probate within six months of the date of death of the deceased person, or they will be required to provide an explanation for the delay. 

Probate is not always required, and an executor should seek legal advice on whether probate is required.

Where there is no executor willing or able to act as executor, or where the deceased died without a will, another person may apply for administration of the estate. Where the deceased died without a will, the estate will be distributed under the rules of intestacy. 

The Relevance of the Will in the Probate Process

The deceased’s will is central to the probate process.

Firstly, only the individuals named as executors can apply for probate of the will.

Secondly, the court issues probate in relation to the will itself, and the will is affixed to the grant of probate. 

Lastly, once probate is granted, the executor(s) will have authority to administer a deceased estate and distribute the estate in accordance with the terms of the will for which probate has been granted. 

The Role of the Executor in the Probate Process

It is the person or persons named as executors in a will who have the right to apply for probate of the will.

If probate in New South Wales is required, the executor must apply to the Supreme Court of New South Wales for a grant of probate. 

Prior to applying for a grant of probate, the executor is required to publish a public notice online informing the public that the executor intends to apply for probate. The purpose of this public notice is to put other interested parties (executors of prior wills, beneficiaries, creditors, etc) on notice that the executor intends to apply for probate. This is important as once probate is granted, the executor will have the right to administer and distribute the estate in accordance with the terms of the will, which may detriment the interests of other people who might have a claim against the estate. 

The role of executor can be onerous and usually requires the assistance of a probate lawyer to help the executor navigate the process. 

What to do if the Executors are Unable or Unwilling to Apply for Probate

A person named as executor in a will is not obliged to accept the role and may renounce the role before applying for probate if they are unable or unwilling to act as executor. If there is more than one executor named in the will, the other remaining executors may apply for probate. 

Once probate has been granted, it is harder for an executor to renouce and resign from the role of executor and will usually require court approval, particularly if the executor has interfered with the estate, such as by calling in assets and paying debts, etc. 

Where there is a valid will but there are no executors willing and able to act as executor, someone else (usually the person with the largest interest in the estate, or a next of kin) may apply for administration of the estate. In NSW, an application of this kind is referred to as an application for Letters of Administration with the Will Annexed.

The Application for Probate

Step 1: Locating the deceased’s last Will

When someone dies, one of the first steps in the probate process involves identifying and locating the deceased’s last will.

While some wills are easy to locate, for instance, where the deceased stored the will in a known location, such as with their solicitor or with other important documents, there are occasions where inquiries (sometimes extensive) are required to locate the deceased’s will. These investigations may require inquiries to be made with the deceased’s bank, accessing safety deposit boxes, contacting lawyers near the deceased’s place of residence, or contacting the NSW Trustee and Guardian. 

Step 2: Enquire with a probate lawyer

Once the deceased’s last will has been located, the named executor(s) will usually engage a probate solicitor. 

Where probate is required, the solicitor will usually publish an online Notice of Intention to Apply for Probate via the NSW Online Probate Registry website. This notice gives other interested parties (i.e., executors of prior wills, beneficiaries, and creditors) notice of the executor’s intention to apply for probate. The notice of intended application for probate will invite any creditors to notify the executor’s solicitor of any debts being claimed against the estate.

If a person dies without a will, there will be no executors named and no probate. Instead, another person (usually the person with the largest interest in the estate or the next of kin) may apply to the court for a grant of administration. Once granted, that person will be referred to as the administrator and will have authority to administer the estate and distribute the estate in accordance with the rules of intestacy. 

Step 3: Preparing Court Documents

In NSW, if probate is required, the following documents will need to be lodged with the Supreme Court: 

• A Summons for Probate.
• An Affidavit of Executor.
• A copy of the Death Certificate.
• The will and any codicils.
• An inventory of property owned by the deceased person either solely or jointly.
• Any further affidavit evidence as required.
• A stamped, self-addressed A4 envelope.

Most probate applications are now lodged via the online registry. 

Step 4: Lodging Probate Application

An executor is required to make an application for a grant of probate within 6 months of the date of death of the deceased person. If an application for probate has been filed more than 6 months from the date of the deceased’s death, the executor will need to provide a valid reason for the delay.

The Role of the Supreme Court of NSW in the Probate Process

An application for probate is filed with the Supreme Court of NSW. 

Upon receiving an application for probate and administration, the court will consider the documents. If further information or a legal document is required, a requisition is issued by the court, and probate will not be granted until the requisition is answered. Only once the court is satisfied with the application will it grant probate. If the Court is not satisfied with the response to the requisition, it may issue further requisitions, or the application may be refused altogether. 

When to Apply for Probate: Timeframes to Lodge Application from the Date of Death

An executor is required to apply for probate within 6 months of the date of death of the deceased person. If an application for probate has been filed more than 6 months from the date of the deceased’s death, the executor will need to provide a valid reason for the delay.

The executor must wait at least 14 days from the date of the Notice of Intention to Apply for Probate before filing the probate application. This is to ensure other interested parties have a 14 day period to raise concerns regarding the impending application, where necessary. 

Obtain Probate: How Long Does It Take to Get Probate in NSW?

The time it takes for the Court to grant probate will depend on several factors, including the Court’s processing times, whether the Court issues requisitions, and the time it takes to respond to the requisitions.

What To Do if You Receive a Requisition After Application Being Filed?

If the Court requires further information or documentation in relation to any aspect of the application, it will issue a requisition.

The executor or their solicitor will be notified of the requisition by letter and will be given an opportunity to provide the required information or documentation. 

A requisition will usually delay probate.

What are the Probate Fees?

Probate fees are the fees that are payable to the Court upon lodging the probate application. The fees are determined by the gross value of the deceased’s estate. 

Probate fees are additional to any legal fees incurred for the preparation and lodgement of the probate application.

Is the Death Certificate Required?

An original death certificate is required for a grant of probate.

Estate Administration: What Happens Once Probate Is Granted in NSW?

Once an executor has obtained a grant of probate, they may commence administering the estate.

Estate administration may involve:

• Identifying the estate assets and liabilities.
• Insuring assets. 
• Resolving any disputes in the probate court or defending any inheritance claims. 
• Lodging tax returns for the deceased and/or the deceased’s estate.
• Paying estate liabilities. 
• Distributing the estate’s assets to the beneficiaries in accordance with the terms of the will. 
• Finalising administration of the estate. 

The period of administration will depend on the size and nature of the estate and may take anywhere from a couple of months to several years. 

Estate Distribution: When can the estate be distributed to a beneficiary?

Once the estate’s debts and liabilities (including funeral expenses, legal and administration expenses) have been paid and all disputes have been resolved, the executor may distribute the estate to the beneficiaries in accordance with the terms of the will.

In some cases, the beneficiaries may receive an interim partial distribution earlier.

Prior to final distribution, the executor of the deceased’s estate will usually publish a “Notice of Intended Distribution,” which gives the public notice that the executor intends to distribute the estate and reduces the executor’s personal liability from future claims if the executor distributes the estate in good faith after the notice period prescribed in the Notice of Intended Distribution. 

How Long Does Probate Usually Take in Sydney, NSW?

How long probate usually takes will depend on how long it takes for the Court to grant probate and the time it takes the executor to administer the estate thereafter. 

The time it takes for the Court to grant probate will depend on several factors. If the probate is uncontested, it may take 1-3 months depending on the Court’s processing times. It may take longer for complex applications, or where the Court issues requisitions or if there is a probate dispute or family provision claim, or where the application was not prepared correctly. 

The subsequent administration of the estate, including distribution to the beneficiaries can take months or in some cases years, depending on the nature and complexity of the deceased person’s estate and whether there are any disputes in respect of the estate.

If you have been named as an executor in a loved-one’s will and want to ensure you satisfy the loved one’s wishes while complying with all the responsibilities of the role, we highly recommend probate lawyers be engaged to assist you with the application process though this stressful time, including preparing the required documents and to reduce any personal liability that may arise from administering an estate incorrectly. 

If you have any questions, call Sydney’s Empower Wills and Estate Lawyers on 1300 414 844 who can answer your questions and assist with all aspects of probate and advise what steps need to be taken. 

Liability limited by a scheme approved under Professional Standards Legislation. 

Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.