A grant of probate in NSW is an order issued by the Supreme Court of New South Wales that confirms the validity of a deceased person’s Will. It gives the executor authority to deal with the deceased estate and legally manage the assets and liabilities.
After receiving probate, the executor becomes the legal personal representative of the estate. They must identify and protect estate assets, pay debts, communicate with beneficiaries, and distribute assets according to the Will.
The probate process can involve complex legal and administrative responsibilities. Many executors seek advice from an experienced probate lawyer to ensure they meet their obligations and reduce the risk of personal liability.
If a person dies without a valid Will, or the named executor cannot act, an eligible person may need to apply for letters of administration instead of probate.
This guide explains the probate process in NSW, when probate is required, the executor’s responsibilities, and how to administer a deceased estate.
What is a grant of probate in NSW?
A grant of probate is a legal document issued by the Supreme Court of NSW that confirms a Will as the deceased person’s valid last Will and testament.
The grant allows the executor named in the Will to collect estate assets, manage financial matters, and distribute property to beneficiaries.
The Supreme Court of NSW oversees probate applications and provides information about the process through its Probate and deceased estates services.
Is probate required in NSW?
Not every estate requires a grant of probate. The need for probate depends on the type and value of assets held by the deceased.
Probate may not be necessary for smaller estates or where assets pass automatically to another person. For example, jointly owned property can usually transfer to the surviving owner by completing the required documents with the relevant authority.
Banks and other financial institutions may release smaller amounts of money without probate. However, each organisation has its own requirements and may request additional documentation.
A grant of probate is generally required when the executor needs to transfer real estate that the deceased owned solely and not as a joint tenant.
For larger or more complex estates, executors commonly apply for probate before dealing with estate assets.
How to apply for probate in NSW
The executor must prepare and file an application with the Supreme Court of NSW. The process involves several important steps.
1. Publish a notice of intended application
Before applying for probate, the executor must publish a notice of intended application online through the NSW Online Registry.
The notice gives interested parties, including potential claimants and creditors, an opportunity to raise concerns or lodge an objection before probate is granted.
2. Prepare the probate application documents
The executor generally needs to prepare the following documents:
- Application or summons for probate;
- The original Will and any codicils;
- Affidavit of the executor;
- Death certificate;
- Inventory of assets and liabilities.
The executor’s affidavit provides information about the deceased, confirms details about the Will, and explains any unusual circumstances that may require clarification.
The inventory identifies the estate assets and liabilities. The filing fee depends on the value of the NSW assets included in the application.
3. Receive the grant of probate
Once the Court approves the application, it issues the grant of probate. The executor can then begin formally administering the estate.
If the deceased owned assets in another Australian state or territory, the executor may need to apply to have the NSW grant recognised, which is known as resealing the grant.
Executor responsibilities after probate is granted
Receiving probate does not complete the estate administration process. The executor must continue managing the estate carefully and follow their legal duties.
An executor’s responsibilities may include:
| Responsibility | What the executor must do |
|---|---|
| Protect estate assets | Secure, insure and preserve property and other valuable assets. |
| Pay debts and expenses | Identify liabilities and pay valid debts before distributing the estate. |
| Communicate with beneficiaries | Keep beneficiaries informed and provide relevant information. |
| Manage claims | Consider any family provision claims or disputes affecting the estate. |
| Distribute assets | Transfer or sell assets according to the Will. |
Executors must act honestly, carefully and in the best interests of the estate. If an executor causes financial loss through negligence or unreasonable delay, they may become personally liable.
Protecting an executor from personal liability
Before distributing assets, an executor should ensure all debts, expenses and potential claims have been properly considered.
Publishing a notice of intended distribution can help protect an executor from future claims if they follow the required process and allow the relevant timeframe to expire.
Executors should obtain legal advice before distributing an estate where there are outstanding disputes, uncertain beneficiaries or possible family provision claims.
Administering a deceased estate after probate
After probate has been granted, the executor can begin collecting assets, paying liabilities and preparing the estate for distribution.
The executor should carefully review the Will to ensure they understand the deceased’s wishes and distribute assets correctly.
Complex estates may require additional advice, particularly where they involve:
- Real estate;
- Shares and investments;
- Businesses;
- Trust structures;
- Superannuation benefits.
Executors should also consider tax implications, including capital gains tax, stamp duty and other financial consequences when transferring or selling assets.
Checklist before distributing an estate
Before making distributions to beneficiaries, an executor should confirm that:
- All estate debts and expenses have been identified and paid;
- Funds have been retained for possible future expenses;
- All beneficiaries have been correctly identified;
- Any claims against the estate have been considered;
- The required notice periods have expired;
- A proposed distribution statement has been prepared where appropriate.
Frequently asked questions about probate NSW
How long does probate take in NSW?
The timeframe depends on the complexity of the estate and whether the application contains all required information. Delays can occur if documents are incomplete or someone challenges the application.
What happens if there is no probate?
Without probate, an executor may not have authority to deal with certain estate assets. Whether probate is required depends on the type of assets and the requirements of the organisations holding them.
What happens if someone challenges a Will after probate?
A person may still be able to bring certain claims after probate has been granted, including a family provision claim. Executors should obtain advice if a dispute arises.
Need Help Applying for Probate in NSW?
Applying for probate and administering an estate involves important legal responsibilities. Executors must follow the correct process to protect estate assets and ensure the deceased’s wishes are carried out.
If you need advice about applying for probate, administering an estate, or dealing with an estate dispute, contact our experienced team on (02) 9818 2888 or email [email protected].