Probate is a court order issued by the Supreme Court of New South Wales that proves a Will is valid and gives the executor legal authority to deal with the deceased person’s assets in accordance with the Will. Until a grant of probate is made, no person is legally entitled to deal with the deceased person’s assets meaning that banks and other asset holders will not release funds to executor.  

Since August 2023, most non-contentious applications for probate have been required to be filed in the Supreme Court of New South Wales through the online probate system on the Online Registry website.

The formal requirements for an application for a grant of probate are contained in Part 78 of the Supreme Court Rules. The Online Registry application process also includes helpful prompts for you file the required documents in support of your application for probate.
 
Most non-contentious applications for a grant of probate Will require you to file:
 
1. A copy of the Will (scanned and uploaded onto the Online Registry) together with the original Will by mail to the Court.

2. A certified copy of the Death Certificate.

3. A duly sworn or affirmed affidavit signed by the executor(s) setting out the information required by the Court. This includes details of the assets held by the deceased and their known or estimated value, and details identifying the beneficiaries and their entitlements under the Will.
 
Every estate is different and the exact requirements will vary from matter to matter. Filing insufficient or incorrect documents can set your application back several months as you re-join the queue for the Supreme Court to review the further documentation needed at the time you file that further documentation. Unfortunately, sometimes delays are inevitable as the Court may require further information before being satisfied with the application for probate. However, engaging a lawyer will maximise the chance that probate is granted without the need to provide any further information or documentation to the Court.

If the executor named in the Will has died and there are no substitute executor named in the Will, then usually a major beneficiary will be an appropriate person to apply for ‘Letters of Administration with the will annexed’. This is a Court order similar to a grant of probate which entitles the applicant to deal with the estate in place of the deceased executor.

Similarly, if there is no Will, Letters of Administration will be required if the deceased left assets which require a grant to be made. The rules of intestacy will apply to determine the person or persons entitled to the deceased person’s assets. Usually, a major beneficiary will apply for a grant of ‘Letters of Administration’.
 
This process of applying for a grant of Letters of Administration in NSW is more complicated than obtaining a grant of Probate as there are more requirements to satisfy the Court including to establish evidence that the deceased person left no Will, and to establish the identity of the beneficiaries of the estate under the rules of intestacy.

An application for probate should be made within 6 months of the date of death. If this 6 month requirement is not met, the Court will require the executor to provide an affidavit of delay explaining why the application was not made in the required time. Executors should therefore act promptly after the death to instruct a lawyer to assist in ascertaining all the relevant information and documentation required for the application for a grant of probate to be filed within the 6 months period.

While it is hypothetically possible to apply for a grant of probate without the assistance of a lawyer, it is recommended that you engage a lawyer to assist with the process. This will assist to ensure you get the application right including identifying all of the assets and liabilities of the estate and reduce delay. There are several other benefits to engaging a lawyer to assist with the administration process more generally. These benefits include:
 
You will also have the benefit of legal advice and experience to minimise the risk of your personal liability for actions undertaken in your capacity as executor. Some common traps include:

– Misinterpreting the terms of the Will.

– Distributing the estate too early.

– Missing estate debts (for example, tax).

– Failing to publish required notices.

– Paying funds to a bankrupt beneficiary.  
 
Additionally, engaging a lawyer to assist with your probate matter will mean:

– The assets of the estate may be collected faster as lawyers are experienced in handling the paperwork required for release of assets from banks and other institutions.
 
– Lawyers can help you engage an appropriate tax advisor to assist with dealing with the estate’s taxation affairs.
 
– You can use the general trust account of the law firm to keep the estate funds separate from your own, and to to assist you with record-keeping requirements for the estate.

– Lawyers deal with the correspondence and distribution to beneficiaries, keeping the pressure ‘off your back.

The time-frame for the Supreme Court of New South Wales to process a standard application for probate is generally between about 4 – 8 weeks after filing your application.

Before filing an application for probate, you will need to have already located the original Will, obtained the official death certificate, and have detailed information about the deceased person’s assets and liabilities to enable you to swear the affidavit of executor.

The fees the estate will incur in obtaining a grant of probate include:
 
– The filing fee charged by the Court, and
 
– The professional fees and disbursements of your lawyer which are capped at the rates set by Schedule 3 of the Legal Profession Uniform Law Application Regulation 2015 (NSW).
 
The estate will also incur fees regarding the administration of the estate after the grant of probate is obtained.
 
The fees to obtain a grant of probate vary depending on the size of the estate. By way of example, at the time of writing this article, an estate with a value of $500,000 would require payment of the following:
 
– The Court filing fee of about $1,918, and

– Legal professional fees capped at about $3,557 (including GST), plus out of pocket expenses.
 
This would mean the initial cost to obtain a probate for a $500,000 estate is around $5,475. Larger estates incur a higher Court filing fee and higher capped professional fees.
 
After a grant of probate is obtained, there will be additional fees in respect of administration of the estate. This can include items such as:
 
– Correspondence with asset-holders and preparing the necessary paperwork for the release of assets to the estate.

– Transfer and/or the sale of any real estate.

– Correspondence with beneficiaries and making distribution to beneficiaries.

– Other work involved in assisting you with the finalising the administration of the estate.
 
The fees involved for this further work will depend on the complexity of the estate and the work involved. Generally, for a standard non-contentious estate, these further professional fees will be less than the fees to obtain the grant of probate.

Some banks will allow an executor of the estate to access funds prior to the grant of probate is made for payment of specific expenses related to the death of the account-holder, including funeral expenses and probate fees. We can assist you with satisfying the bank’s requirements for release of funds to allow payment of these expenses.
 
On a case by case basis, our firm may offer to defer payment of professional fees, or assist in the payment of the Court fee, to be paid when funds become available in the estate.

Most estates in New South Wales are expected to be administered within 12 months of the date of death. This period is referred to as the “executor’s year”. Where there are legal disputes or complex circumstances, the administration of an estate can take longer than 12 months.
 
Executors are generally recommended to wait at least 6 months from the date of death, and after the period specified in a Notice of Intended Distribution has passed, before distributing an estate. A Notice of Intended Distribution offers an executor protection from personal liability in respect of any future claims which the executor had no knowledge prior to distributing the estate.
 
Executors should also be aware that the time limit for filing a Family Provision Claim in New South Wales is 12 months from the date of death (subject to any extension of time granted by the Court for late claims). Distributing the estate before this 12 month period expires carries risk. If a Family Provision Claim is made after distribution, the Court may order the return of part or all of a beneficiary’s distribution pending resolution of the claim. Executors should seek legal advice before making any early distributions.