What Is Probate In NSW? A Plain-English Guide For Families And Executors
Probate is the legal process that confirms a deceased person’s will and gives the executor authority to administer their estate. In NSW, the Supreme Court issues a grant of probate. Not every estate needs one, but probate is often required before significant assets can be collected, transferred or sold.
For an executor of a will, the first step is usually working out what the deceased owned, how those assets were held and whether banks or other asset holders require a grant.
What Is Probate In NSW?
Probate in NSW is the process through which the Supreme Court recognises a deceased person’s will and confirms the executor’s authority to administer the estate.
Once probate is granted, the executor can provide the grant to relevant organisations as evidence of their authority. They can then collect assets, pay estate debts and liabilities, and distribute the remaining estate according to the will.
Probate is only one part of estate administration. Nelson Keane & Hemingway Lawyers’ guidance on
wills and estates in NSW covers matters from preparing wills through to probate and administration of estates.
What Is A Grant Of Probate?
A grant of probate is the formal document issued by the Supreme Court of NSW confirming the executor’s authority to deal with the deceased estate.
For example, a parent may leave a valid will appointing their daughter as executor. If the estate includes a home and substantial bank accounts, being named in the will may not be enough to complete every transaction. The executor may need to obtain probate and provide the grant before relevant assets can be released or transferred.
Does Every Estate Need Probate In NSW?
No. Whether probate is required depends on the type, value and ownership of the deceased’s assets, as well as the requirements of individual asset holders.
A smaller estate may contain assets that a bank agrees to release without probate. Property held as joint tenants also generally passes to the surviving joint owner rather than being transferred under probate.
Executors should therefore identify the assets and contact the relevant institutions before applying. Different organisations can have different requirements and thresholds.
How Does The Probate Process Work In NSW?
A straightforward probate application generally involves several steps:
- Locate and review the original will. Confirm that it is the deceased’s last will and identify the appointed executor.
- Identify assets and liabilities. Contact banks and other relevant organisations and establish how property and other assets were owned.
- Prepare the application. The required information and supporting documents must meet Supreme Court requirements.
- Publish the required notice. A notice of intended application must generally be published through the NSW Online Registry at least 14 days before the summons for probate is filed.
- File the probate application. The application can proceed once the notice requirement has been satisfied.
- Address any requisitions. If the Court needs corrections, clarification or additional evidence, the executor must respond.
- Receive the grant. The executor can then use probate to continue administering the estate.
The 14-day notice requirement is important when estimating the timeline. The probate process begins before the application reaches the Court because documents and asset information first need to be gathered and the notice period completed.
Most executors engage
solicitors in Dubbo to prepare and file the probate application, particularly where an estate includes property or there are complications with the will.
How Long Does Probate Take In NSW?
There is no fixed timeframe for probate NSW applications. The total time depends on how quickly the executor can obtain information, prepare the documents and complete the notice period, as well as the Court’s processing time.
The Supreme Court publishes current probate processing information, which changes according to its workload. Executors should also factor in the required notice period before filing rather than measuring the process only from the application date.
Probate can take longer where:
- The original will is missing;
- There are concerns about an informal will;
- An executor cannot or will not act;
- Information about assets is incomplete;
- The Court issues a requisition; or
- The will or estate is disputed.
Applications involving a copy of a missing original will or an informal will can require additional evidence and legal work.
What Happens After Probate Is Granted In NSW?
After probate is granted, the executor can use the grant to collect and deal with estate assets. This can include closing bank accounts, realising investments, paying liabilities and dealing with property.
The executor may also need to address taxation, outstanding debts and potential claims before distributing the estate to beneficiaries.
Where a home, farm or other real estate needs to be sold or transferred, this can form part of deceased estate property transactions. The executor should establish what is required for the particular property before arranging settlement or transfer.
Receiving probate does not mean the estate should immediately be distributed. The executor must first ensure the estate has been properly administered and relevant liabilities and potential claims have been considered.
What Happens If There Is No Valid Will?
If a person dies without a valid will, the appropriate process is generally an application for Letters of Administration NSW rather than probate.
Letters of Administration authorise an administrator to manage the deceased estate. The person entitled to apply depends on the circumstances and the rules governing intestate estates.
A different form of administration may also apply where a valid will exists but there is no executor able or willing to obtain probate.
For more information about what happens without a will, read
Do I Need A Will? What Happens If You Don't Have One In NSW.
What If The Original Will Cannot Be Found?
A missing original will does not necessarily make a grant impossible, but it can make the application more complex. Additional evidence may be required to explain what happened to the original and establish the appropriate basis for a grant.
Informal wills can create similar complications. If there is any uncertainty about whether a document constitutes the deceased’s will, legal advice early in the process can help determine the appropriate application.
When Should An Executor Speak To A Probate Solicitor?
An executor should consider obtaining legal advice early where the estate contains substantial assets, real property or anything unusual about the will.
Assistance can be particularly valuable where the original will is missing, beneficiaries disagree, an executor cannot act, there is a potential estate claim or the deceased owned interests in companies, trusts or rural property.
The key takeaway is that probate is not required for every NSW estate. Where it is required, however, identifying the assets and checking the will and asset-holder requirements early can prevent unnecessary delays.
If you have been appointed executor or need help administering a deceased estate,
Nelson Keane & Hemingway Lawyers can assist with probate and administration of estates from the initial application through to finalisation.
Contact our team to discuss the estate and the next steps.
Frequently Asked Questions About Probate In NSW
What is probate in simple terms?
Probate is the process by which the Supreme Court of NSW formally recognises a deceased person’s will and confirms the executor’s authority to administer the estate.
How do I know if probate is required in NSW?
It depends on the assets, how they were owned and the requirements of the organisations holding them. Executors should identify the estate assets and check each relevant institution’s requirements before applying.
How long does probate take in NSW?
There is no guaranteed timeframe. Allow time to gather estate information, prepare the application, complete the required notice period and wait for Court processing. Complex applications can take longer.
Can an executor administer an estate without probate?
Sometimes. Probate may not be required if the relevant assets can be transferred or released without a grant. Requirements vary according to the assets and institutions involved.
What is the difference between probate and Letters of Administration?
Probate generally applies where there is a valid will and an executor available to act. Letters of Administration generally applies where somebody dies without a valid will, although a different administration application can also be required where a will exists but no executor can obtain probate.
What happens after probate is granted in NSW?
The executor can use the grant to collect and deal with estate assets, pay liabilities and continue administering the estate. Once the estate’s obligations have been properly addressed, the remaining assets can be distributed to beneficiaries according to the will.
