Probate in NSW: When It Is Needed and How It Works

When a loved one dies, one of the first questions families ask is whether probate in NSW is needed and what it involves. Probate can seem technical and daunting at an already emotional time. This guide explains what probate is, when it is usually required and how the process generally works. It is general information only, and every estate is different.

What is probate?

Probate is an order, called a grant of probate, made by the Supreme Court of NSW. It confirms that a will is valid and that the executor named in the will has legal authority to deal with the deceased person's estate. In effect, it gives banks, land registries and other institutions confidence that the executor is the right person to collect and distribute the assets.

If there is no will, or no executor is able to act, a family member or other eligible person may instead apply for letters of administration. The process is similar, but the rules about who can apply are different.

When is probate needed?

There is no single rule that applies to every estate. Probate is generally needed when the deceased owned assets in their sole name that an institution or registry will not release or transfer without a grant. Common examples include:

• real estate (a house, unit or land) owned solely, or as tenants in common;
• bank accounts or investments above the amount an institution is willing to release without a grant; and
• shares or other assets where the registry or company requires formal proof of the executor's authority.

Probate is often not needed for assets that pass automatically to a surviving owner, such as property held as joint tenants, or for some assets that pass outside the estate by their own rules, such as certain superannuation benefits. Because each bank, share registry and fund sets its own requirements, it is wise to ask early what each will accept.

How the probate process works

The steps can vary, but a typical application for probate in NSW looks like this:

1. Find the original will and death certificate. The Court generally requires the original will. If it cannot be found, extra steps are needed.
2. List the assets and debts. The executor prepares an inventory of what the person owned and owed, including estimated values.
3. Publish a notice of intended application. The executor publishes a notice on the NSW Online Registry. This must generally be done at least 14 days before the application is filed, so that anyone with an interest can come forward.
4. Prepare and lodge the application. This usually includes a summons for probate and an affidavit by the executor, filed with the Supreme Court along with the filing fee. Court fees depend on the value of the estate.
5. Respond to any requisitions. The Court may ask for corrections or further information. Prompt, accurate responses help avoid delay.
6. Receive the grant. Once probate is granted, the executor can collect assets, pay debts and eventually distribute the estate.

Timing varies. Some applications take longer, particularly where documents are incomplete or the will has problems.

What does an executor have to do?

Being an executor is a serious legal responsibility. Executors act as trustees for the beneficiaries and are expected to act carefully and honestly. Their duties generally include:

• arranging the funeral and protecting the assets;
• collecting in the assets and paying valid debts, taxes and expenses;
• keeping the estate's money separate from their own and keeping clear records; and
• distributing the remaining property in line with the will.

When can the estate be distributed?

Executors are generally advised not to distribute the estate until at least six months after the date of death. This is because eligible people have a limited time to make a family provision claim against the estate, and an executor who distributes too early can face personal risk. Executors may also choose to publish a notice of intended distribution, which can offer some protection against claims they did not know about. Because these time limits are strict, executors should seek advice before distributing anything.

When should you get legal help?

Some estates are simple, but advice is particularly valuable if there is real estate, a business, overseas assets, a missing or damaged will, a possible family dispute, or uncertainty about who should apply. A solicitor can prepare the paperwork, deal with the Court and help the executor avoid costly mistakes.

Frequently Asked Questions

How long does probate take in NSW?

It varies. Straightforward applications can be completed in a matter of weeks, while more complex estates or applications with missing documents can take months. Delays are often caused by incomplete paperwork, so preparation matters.

Can I apply for probate myself without a solicitor?

Yes, executors can apply on their own through the NSW Online Registry. However, mistakes can be costly and stressful, particularly where the estate includes property or there is any risk of a dispute. Many executors prefer to engage a solicitor.

Is probate always needed if there is a will?

No. Whether probate is needed depends on the assets and what institutions require. A will alone does not necessarily mean a grant is needed, and a grant may be needed even for a modest estate if an institution insists on it.

What if there is no will?

Where someone dies without a valid will, a person such as a spouse, partner or adult child can apply for letters of administration. The estate is then distributed according to the rules set by NSW law, not by the person's wishes.

This article is general information only and is not legal advice. Laws and processes change, and every situation is different. Speak to a lawyer about your circumstances before you act.