Probate & Administration in New South Wales

In New South Wales, when a person dies, the executor named in the will is entitled to apply for probate and administer the estate. Where there is no executor willing and able to act as executor (i.e., if they have predeceased the testator) or where the deceased died without leaving a will, another person may apply to the Court to be appointed administrator, which, if appointed, would allow them to administer the deceased’s estate. The executor and administrator have similar roles, that is, to administer the estate of a deceased person, including identifying and calling in assets, paying the debts, and distributing the estate. 

Each State and Territory of Australia has its own laws and regulations when it comes to probate and administration.

How to Apply for Probate in NSW

In NSW, the named executor has the right to apply for probate with the Supreme Court of NSW. The executor is not required to apply for probate in every case, and the size and nature of the estate and the location of the assets will often guide whether probate is required. Where probate is required, the executor should apply for probate within six months from the date of death of the deceased, where reasonably practicable.

Applying for Letters of Administration When There is No Will

Where a person dies without a valid will, they are referred to as having died ‘intestate’.

Where a person dies intestate, as there is no valid will, there will be no named executor. In these circumstances, a person (often the next of kin or person with the largest interest in the deceased’s estate) may need to apply for Letters of Administration, which, if granted, will give that person the power to administer and distribute the estate.

In NSW, an intestate estate is distributed in accordance with the rules of intestacy set out in the Succession Act 2006 (NSW), which prescribe a cascading order of entitlement from immediate relations such as spouse and children through to more distant relatives and ultimately, the State where there are no living relatives.

How Our Probate Lawyers in Sydney Can Help You 

Applying for a Grant of Probate in NSW

Applying for probate can be a complex process that requires the preparation of Court documents, the collation of supporting documents (i.e., death certificate, executor’s affidavit), and the filing of the application with the Supreme Court of NSW. In most cases, an executor engages a lawyer to advise on and assist with the probate or administration process.  

Estate Administration

Estate administration can involve many steps, including but not limited to identifying the estate’s assets and liabilities, communicating with third-parties and government agencies, identifying and locating beneficiaries, and resolving disagreements between beneficiaries. If an estate is not administered in accordance with the applicable laws and regulations, the executor may be held personally liable for any losses suffered by beneficiaries. An experienced probate lawyer can help advise on and assist with the process to minimise the risk of personal liability.

Intestate Estates

Where a person dies without a will, the family member may require advice and assistance from a lawyer as to entitlements to the estate. Once entitlements are determined, one of the beneficiaries may apply to the Court for a grant of letters of administration, which, if granted, would allow the person named as administrator to administer the estate.

Estate Disputes and Estate Litigation

An executor and administrator’s role includes defending the estate from claims from disappointed beneficiaries. 

For instance, a person may contest the deceased’s will (formally known as a ‘family provision claim’) if they feel they have not been adequately provided for in the deceased’s will. Another form of claim is when a person challenges the will because they believe it is not valid because of the circumstances surrounding its creation and/or execution. 

Where a claim is raised, an experienced probate lawyer will be able to advise on the strength of the disappointed beneficiary’s claim and assist with defending or resolving the claim.

Dispute Resolution

An experienced probate lawyer can also advise on options for alternative dispute resolution with the aim of avoiding lengthy and costly Court proceedings. Most disagreements can be resolved through negotiations and mediation. 

Estate Distribution

During the later stages of estate administration, the executor or administrator will arrange for distribution of the deceased estate in accordance with the terms of the deceased’s will or in accordance with the rules of intestacy, as the case may be.

The distribution of an estate may require the transfer of property or other assets (i.e., shareholdings, collectables, cars, and personal possessions) or cash directly to those entitled. What assets are distributed and in what form depends on the terms of the will or rules of intestacy, the nature of the assets, and any agreements between the beneficiaries as to the distribution of the estate. 

Executor Support and Guidance

At Empower Wills and Estate Lawyers, our lawyers have the knowledge and experience to assist with all aspects of probate and administration. We provide personalised service tailored to each client’s particular circumstances, needs, and objectives to inform and support them through the process.

We also offer remote services and home visits where required to ensure the client has access to legal services in the most convenient form. 

Tax Advice and Financial Planning Services

The administration of an estate may give rise to tax liabilities, and this is why it’s important to have an experienced probate lawyer assist and advise on potential tax consequences. The timing of the sale or transfer of an asset may have different tax consequences, and a lawyer can help provide or seek third-party advice on a range of legal options and scenarios for you to consider.

Simplifying the Probate Process 

Step 1: Initial Consultation and Review

The first step is to schedule a free initial consultation with one of our probate lawyers. This is an opportunity for you to tell us about the estate. We will ask you questions to obtain a detailed understanding of the estate to determine whether we can assist and, if so, how.

Step 2: Locating the Last Will and Probate Application

Once the deceased’s last will has been located, we can assist the named executor in applying for a grant of probate.

If there is no executor willing or able to assist, or where there is no will at all, we can assist the next of kin or the person with the largest interest in the estate to apply for Letters of Administration. 

Step 3: Estate Administration

Our lawyers can assist with the entire estate administration process, including identifying assets and debts, communicating with third parties and government agencies, identifying and locating the beneficiaries under the will or under the laws of intestacy, and resolving disagreements between them.

If an estate is not administered in accordance with the applicable laws and regulations, the executor may be held personally liable for losses suffered by beneficiaries. Our lawyers can advise on and assist with the process to minimise the risk of personal liability.

Step 4: Tax Advice

The administration of an estate may give rise to tax liabilities, and this is one of the reasons it’s important to have an experienced probate lawyer to assist and advise on potential tax consequences. The timing of the sale or transfer of an asset may have different tax consequences, and a lawyer can provide a range of legal options and scenarios for you to consider.

Step 5: Dispute Resolution

Our lawyers can also assist with defending claims against the estate. A disappointed beneficiary may decide to contest or challenge a will in an attempt to obtain a larger share of the estate. Most disagreements can be resolved through negotiations and mediation. We can assist with defending or resolving claims by way of settlement that is both efficient and cost-effective.

Step 6: Estate Distribution

Once all of the estate’s assets have been identified and called in, all of the estate’s debts and liabilities have been paid, and all disputes resolved, the estate may be distributed to those entitled under the terms of the will or the rules of intestacy. 

Distribution may involve the transfer of property, other assets, or cash directly to those entitled. In what form the assets are distributed will depend on the terms of the will or the rules of intestacy, the nature of the assets, and any agreements between the beneficiaries as to the distribution of the estate. 

In some cases, the improper distribution of an estate can result in the executor or administrator being personally liable to any beneficiaries who suffered a loss. Therefore, it’s important to engage an experienced probate lawyer to reduce any personal liability that may otherwise arise. 

Have Our Probate Lawyers Sydney On Your Side

Experts in Our Specialised Area of Law

Our probate lawyers specialise in wills and estate law. 

When we assist a client with probate or administration, we assist the legal personal representative to administer the estate lawfully and reduce the risk of personal liability. 

Through our unique experience in will disputes, we are better placed to understand the risks of claims against a deceased estate and better placed to advise on ways to defend or settle such claims. 

High Level of Client Care and Professionalism

When acting for an executor or administrator, we provide personalised service tailored to each client’s particular circumstances, needs, and objectives to support them through the process. We also offer remote services or home visits where required to ensure the client has access to legal services in the most convenient form. 

Proven Track Record

We have experience with estates of all shapes and sizes. 

Our expertise in this area ranges from clients with small estates involving a simple will to complex estate plans involving family trusts, companies, businesses, and self-managed superannuation funds. 

No or Low Up-Front Payments

In most cases, we are able to postpone invoicing for our services until such time as the estate has called in sufficient assets to pay for the invoice. This avoids the executor or administrator having to pay a large sum up front.

Can A Probate Lawyer Help with Wills and Estate Planning and Preparing an Estate Plan?

An experienced probate lawyer can also help protect a person’s hard-earned assets for future generations by providing estate planning legal services, creating a will that meets the formal requirements, and advising on tax-effective strategies (such as testamentary trusts).

Empower Wills and Estate Lawyers Sydney: Your Leading Probate and Estate Dispute Lawyers

We work hard to provide outstanding legal services to all of our clients. We offer tailored fee structures to best ensure accessibility for all. 

What Our Clients Have to Say About Working With Us

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Get in Touch With Us Today to Schedule a Client Conference with Our Expert Solicitors

With our headquarters located in Sydney, we are a national practice and offer services in all States and Territories of Australia. Our lawyers specialise in probate and estate disputes. If you are the executor of an estate, our probate lawyers can help. Book a free appointment today by calling 1300 414 844 to discuss your legal needs and to arrange a meeting with one of our expert probate lawyers. We offer free initial consultations for those who would like assistance with the probate process. 

Frequently Asked Questions

What is the role of a probate lawyer in estate administration?

The role of a probate lawyer is to assist an executor or administrator in complying with the laws and regulations to reduce the risk of personal liability that may arise if the executor or administrator fails to comply with a particular requirement. 

How long does the probate process take in Sydney, NSW?

Where probate is required, an application should be made within 6 months from the deceased’s date of death, where reasonably practicable.

Once lodged, it may take 1-3 months for the Court to issue a grant of probate, or longer if the Court requires further information (known as a requisition). 

Once probate has been granted, it can often take 6-12 months to administer an estate, or longer, depending on the circumstances. 

Therefore, the whole estate process can take 9-18 months, or longer, depending on the circumstances.

Do I always need specialist probate lawyers when a family member passes away?

If, as an executor or administrator, you fail to administer the estate correctly, you may be held personally liable to repay or compensate the estate or the beneficiaries for any losses. A lawyer can help ensure you comply with all laws and regulations to reduce the risk of any personal liability. A lawyer can also act as an intermediary between the executor or administrator and the beneficiaries and other third-parties. 

What is a reseal of probate?

In New South Wales, a reseal of probate is the process where the Supreme Court recognises a Grant of Probate or Letters of Administration issued in another jurisdiction. This may be necessary where, for instance, a deceased person owned assets in NSW and other States or Territories. When applying for a reseal of probate, the executor or administrator will usually apply to the NSW Supreme Court with the original grant from another jurisdiction, which, if granted, will give the executor or administrator the power to deal with that asset in that jurisdiction.

While the reseal grants similar powers as the original grant from another jurisdiction, executors must comply with NSW’s legal and tax obligations, and it’s important to seek advice in relation to all relevant jurisdictions. 

What happens if there is no will? How can a probate and estate lawyer assist?

Where a person dies without a will, they are referred to as dying “intestate.” 

If the estate is of such a kind where a grant of administration is required, for instance where the deceased died owning property which requires a formal grant before it can be transferred, a person (usually the next of kin or the person who has the largest interest in the estate) may apply for Letters of Administration, which if granted, would give them power to administer the estate. 

As in the case of an executor, an administrator can also be held personally liable if they don’t comply with the laws and regulations when administering and distributing an estate. Therefore, it’s important to engage a lawyer who can assist to ensure you comply with all relevant laws and regulations. 

Can a probate law firm help if there’s a family provision claim?

A person can leave their assets to anyone they choose when they die; this is referred to as “testamentary freedom.”

In some circumstances, however, the law can interfere with the deceased’s testamentary freedom and effectively rewrite the terms of the deceased’s will by altering the distribution of the deceased’s estate.

Claims against a deceased estate where the will is contested or challenged are common and, if not quickly and thoroughly addressed, can lead to significant costs and lengthy delays, with the potential for litigation in Court.

Whether you’re an executor looking to defend a claim made against an estate or believe you are entitled to a greater share of an estate, call Empower Wills and Estate Lawyers today to speak with an experienced probate lawyer and discuss your needs. Our lawyers are experienced, and their primary objective is to secure the best possible outcome. 

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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 that 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.