When someone dies, the person named as executor in the deceased’s will has the right to apply to the Supreme Court of NSW for a grant of probate, which, if granted, will give that person the power to administer and distribute the deceased’s estate.

If there is a will but none of the named executors are willing and able to act as executor, or where the deceased died without a will (known as dying ‘intestate’), another person (usually the next of kin or person with the largest interest in the estate) may need to apply to the court for Letters of Administration, which, if granted, would give that person the power to administer the estate. 

Probate is not required in all cases, and the need for probate will depend on the size, nature, and location of the estate assets.

This guide will help you better understand everything you need to know about probate and when a grant of probate is required in New South Wales.

Why is Probate important to validate a will in NSW?

Probate is a court order that gives the executor power to administer and distribute a deceased estate.

The court will only grant probate once it is satisfied that the will being propounded is the deceased’s last will.

However, there are in fact two forms of probate that can be granted.

The first form of probate is where an executor makes an application for a grant of probate and the application is not contentious – that is, where there is no challenge to the validity of the will being propounded. If granted, this form of probate is known as a grant of probate in “common form”.

The second form of probate is where an executor applies for probate and the application is contentious – that is, where one or more other people challenge the validity of the will being propounded. In these cases, the probate court may be required to hear evidence from both parties before determining which will was the deceased’s last valid will. A grant of probate after a contentious application is known as a grant of probate in “solemn form”. 

The difference between the two is that the original grant of probate in common form can be challenged at a later date, whereas a grant of probate in solemn form is, in effect, a final determination on the matter and has the authority of a court order. 

When is Probate required?

Although probate is generally required, it is not required in all cases.

Whether or not probate is required will depend on the size, nature, and location of the deceased’s estate.

If the deceased held property in their own name or as tenants in common with someone else, probate will be required to allow for the transfer of the property. 

If the deceased only held cash or other assets that can be legally transferred without a grant of probate, then it may not be necessary to apply for probate. 

Who is entitled to apply for a Grant of Probate in NSW?

The person named as executor in a deceased’s will has the right to apply for probate.

In NSW, the executor is required to apply for probate from the Supreme Court of New South Wales. As the laws regarding probate are different in each State and Territory of Australia, it is important to obtain advice relevant to the jurisdiction specific to each case. 

Who decides if a Grant of Probate is required in NSW?

It is usually the executor who decides whether a grant of probate is required, and it will usually depend on whether specific assets can be transferred to the estate without a grant of probate.

For example, a grant of probate or administration is usually required for the transfer of property from the deceased’s name to the executor, the release of cash over certain thresholds from the deceased’s bank account to the executor’s bank account, or the release of insurance proceeds over certain thresholds.

What steps should you take if you need a Grant of Probate?

1. Identify and locate last will

The first step in the probate process is to identify and locate the deceased’s last will. If the person had a will, you may be able to locate it at their home, with their lawyer, at their bank, or with the NSW Trustee & Guardian if it was registered. 

If no will can be located, the deceased may have died without a will referred to as dying ‘intestate’. 

2. Prepare court documents

In New South Wales, a grant of probate is usually necessary to administer and distribute a deceased estate. The application for probate will often require the following documents:

• A Summons for Probate.
• An Executor’s Affidavit.
• Certified copies of Death Certificate, will and any codicils.
• An Inventory of Estate Assets including, solely owned and jointly owned assets. 
• Other documents as required. 
• A stamped, self-addressed A4 envelope.

3. Lodging probate application

In NSW, an executor is required to apply for probate within 6 months of the death of the deceased or give an explanation for the delay. 

Prior to filing the probate application, the person applying for probate is required to publish a “Notice of Intended Application for Probate” through the NSW Online Registry website, giving members of the public and creditors notice of the person’s intention to apply for probate after the notice period. 

The court’s filing fee is payable upon the lodgement of an application for probate or Letters of Administration. The fee is determined by the gross value of the estate’s assets, and the more valuable the estate, the higher the filing fee. The fee can be confirmed upon lodgement. 

The laws and regulations in relation to probate and administration are complex, and an executor or administrator can be held personally liable for any losses suffered by the beneficiaries arising from maladministration of the estate from the deceased’s date of death. Most executors engage a probate lawyer to assist with the estate administration process to reduce the risk of personal liability.

When is Probate not required?

An executor does not always require a grant of probate.

Whether probate is required will depend on the size, nature, and location of the estate. 

Examples of where probate may not be required include:

• where the deceased’s primary asset held is a property which was held as joint tenants and which passes to the surviving joint tenant under the rules of survivorship.
• where the deceased owned assets, which can be transferred from the name of the deceased person to the executor without a grant, because none of the asset holders (for example, a bank or financial institution) require a grant to transfer the asset to form part of the estate. 
• where there are insufficient assets to justify a grant, such as a small amount of cash and personal property, such as clothing or jewellery.

What to do if Probate is Not Required

If an executor has determined that probate is not required, once all assets have been called-in, all liabilities paid, and all claims resolved, they may then proceed with distributing the balance of the deceased person’s estate in accordance with the terms of the will.

Importantly, an executor who distributes an estate without obtaining a grant of probate will not enjoy the protection against personal liability that an executor who distributes an estate after obtaining a grant of probate and complying with all the laws and regulations would otherwise enjoy. 

Challenging a Probate Application in the Supreme Court of NSW

Disputes in relation to probate applications are common. The outcomes vary depending on the facts and circumstances of each case. 

Examples of disagreements that may arise include where a person takes issue with the validity of the last will due to questions regarding the will-maker’s testamentary capacity at the time of making the will, or on grounds of undue influence or fraud, or where there are multiple wills being propounded. In most cases, disputes can be resolved through negotiations and mediation. In some cases, a dispute involves litigation in the NSW Supreme Court. 

If you believe you may have grounds to challenge a will, we recommend you contact an experienced probate lawyer to obtain advice as early as possible. 

What happens if there is no will?

Where a person dies without a will (referred to as dying ‘intestate’) and there are assets that require a grant of administration in order to be administered, the deceased’s next of kin or the person with the largest interest in the estate may apply for Letters of Administration which, if granted, will give that person the power to administer and distribute the estate.

Seeking Legal Advice on Probate Matters Sydney? Contact Us Today!

If you are an executor and need advice on what steps you need to follow or assistance with applying for a grant of probate in NSW or in another state, wish to reduce your liability risk, or wish to discuss your own estate planning, contact Empower Wills and Estate Lawyers now on 1300 414 844. 

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.