Complete Guide To Obtain Probate in NSW

What is ‘Probate'?

Probate is the approval granted to a nominated Executor of a Will by the Supreme Court. A Grant of Probate confirms that the Will submitted for Probate by the executor is the most recent and valid version. This allows the court to grant authority to the executor, to then carry out the wishes the deceased left behind in their Will.

In this way, a grant of probate provides a legal document to grant power to the executor to access, manage and distribute the deceased's estate.

You can only apply for Probate if you are an Executor named in a valid Will.

Why do I need a Probate?

In most cases, without a Grant of Probate from the Supreme Court, the Executor will be prevented from accessing and managing the assets of the estate (i.e. bank accounts, share accounts, property and other assets).

Occasionally, the Executor of an estate will not require Probate to access and distribute the deceased person's estate, but Probate is normally required.

Probate may not be required by the supreme court, in the following situations:

• All assets owned by the deceased were held as joint tenants (also known as joint proprietors)

• The estate has minimal assets (this depends on the organisation, and is usually considered on a case-by-case basis)

• There is no Will (if this is the case, please see below ‘What if there is no Will?')

What is my role as Executor?

If you have been named the Executor to someone's Will, you may have some idea of what the role involves, but challenges can still pop up that require you to deal with any financial or legal complications.

It is the Executor's responsibility to administer the estate. If more than one Executor is appointed in the Will, the Executors must act jointly (i.e. together). If one of the appointed Executors does not wish to accept this responsibility, then they will need to renounce their appointment.

If you are a back-up or substitute Executor, you can only apply for Probate if the primary executor is unable to act.

As Executor, you will generally be required to:

• Locate the Will of the deceased person

• Organise and carry out funeral arrangements

• Obtain a death certificate

• Notify utility providers and financial institutions of the death

• Redirect post and contact financial institutions to put a halt on any direct debits

• Find and contact beneficiaries, and keep them updated on the estate administration process

• Contact financial institutions, service providers and government agencies to validate the deceased's assets and liabilities

• Create an inventory of the estate including cash, real estate and securities, insurance policies, superannuation, outstanding work entitlements and any personal and household effects

• Keep records of any financial and administrative transactions incurred during the estate administration process

• Provide a distribution report to each beneficiary

• Gather important documents and fill out the paperwork to apply for a grant of probate with the Supreme Court

• Pay off any debts, taxes and other expenses incurred for burial or funeral arrangements

• Distribute the remainder of the estate to beneficiaries including paying legacies, establishing testamentary trusts, and bequeathing gifts or donations

• Prepare account and tax information for beneficiaries after Probate is granted

You can review a detailed list of tasks traditionally required of an executor by downloading our complimentary Executor Checklist.

Do I need a lawyer to apply for a grant?

For probate in NSW, there is no requirement that you seek legal advice to apply for a Probate grant. Whilst there are online resources that can help guide you through the process, most people choose to use a lawyer.

Navigating the supreme court of NSW solo can be complex, overwhelming and- if done incorrectly- could result in personal liability for the executor. This motivates many people to seek legal advice before they apply for probate.

As part of preparing and lodging a Probate application, you will be required to swear or affirm an Affidavit, and may require affidavit evidence or certified copies of documents. These are services that most lawyers offer as part of their Probate service and can help make the process of applying for Probate less complicated.

What if there is no Will?

If there is no Will, it is still possible to apply to the Supreme Court of NSW to grant authority to executors- enabling them with this same power to deal with the deceased's estate.

If a person dies without a Will (known as dying intestate), the deceased's next of kin needs to make an application for Letters of Administration rather than Probate. The following documents grant the same authority, but the process is slightly more complex.

To find out more about obtaining a Grant of Letters of Administration, please visit our NSW Guide to Letters of Administration.

Steps required for Probate in NSW

The process of obtaining a NSW grant of probate requires the executor to make an application with the NSW Supreme Court. This generally also involves publishing an online notice and lodging a set of documents with the Court. The Court will review the documents and if all the information has been correctly prepared, the Court will make a Grant of Probate.

Locate important documents and information

As explained above, it is the Executor's role to locate the original Will, obtain a death certificate, and contact financial institutions, service providers and government agencies to validate the deceased's assets and liabilities.

These documents and important pieces of information will all be required for the Probate application. You should not lodge a Notice of Intended Application until you are in possession of the original Will and completed form of the death certificate.

As part of applying for Probate, you may also require copies of death certificates for any beneficiaries named in the Will who have predeceased the deceased, and/or birth certificates for any surviving children of beneficiaries named in the Will who have predeceased the deceased.

Lodge a Notice of Intended Application

A Notice of Intended Application publicises your intention to apply for a Grant of Probate of the deceased's last known Will. It also provides any creditors of the deceased with an opportunity to make their claims on the estate known to the Executor.

The Notice is published on the NSW Online Courts and Tribunals Registry website. The fee for publishing the Notice is $48.00 (as at time of publication). You will need to make an account, enter all required information and provide your credit card details to pay for the Notice online, if you are publishing it yourself.

The relevant legislation requires that the Notice be published at least fourteen (14) days before you apply for probate.

Identify assets and liabilities of the deceased person

As explained above, it is the Executor's responsibility to create an inventory of the remaining estate of the deceased person. This includes all cash, real estate and securities, insurance policies, property, superannuation, outstanding work entitlements and any personal and household effects.

This information is required for the Probate application and can take some time to collate. In NSW, the Inventory (UCPR Form 117) must contain details of all assets the deceased held either solely, as well as the existence of a joint tenant and/or as tenants in common.

Here are some examples of the details required for different types of assets you may come across:

• Real estate – Address, Certificate of Title Folio Identifiers, and value as at date of death

• Bank accounts – Bank name, branch, BSB, account number(s) and value as at date of death

• Shares – Name of company, name of share registry, number of shares held at date of death and value as at date of death

The Affidavit of Executor (UCPR Form 118) requires you to list all liabilities held in the sole name of the deceased as at the date of death. You do not need to include jointly held liabilities (such as a home loan or mortgage held jointly with a spouse or de facto partner). To prepare the Affidavit of Executor, you must identify:

• The date each liability was incurred

• Name of the creditor (whether it be a person or company)

• The value of the liability as at the date of death

Estate expenses, such as funeral and burial costs, are not considered liabilities of the deceased as they were incurred after death. These types of liabilities do not need to be included in the Affidavit of Executor.

NSW Court application

Required forms

The forms required for a standard Probate application in NSW are as follows:

• UCPR Form 111 – Probate Summons

• UCPR Form 112 – Grant of Probate

• UCPR Form 117 – Inventory of Assets

• UCPR Form 118 – Affidavit of Executor

It is important that you take great care when preparing these documents for an intended application for probate. It's at this stage that seeking legal advice from a qualified person can help you review.

In particular, you need to pay close attention to UCPR Form 118, which is an Affidavit. When you sign an Affidavit, you are swearing or affirming the truth of its contents. As such, you must carefully review and approve the document before signing it. If you do not agree with something in the Affidavit (or any of the documents), you should contact your lawyer so the certified copy can be amended accordingly.

Signing appointment

Only an authorised witness can witness you sign your Affidavit. Authorised witnesses include:

• Lawyers

• Barristers

• Notary Publics

• Justices of the Peace

You should pay careful attention to the instructions provided to you for signing the Probate application. Most errors with Probate applications arise in the signing of the documents because people do not follow the instructions provided.

Probate lawyers, such as the team at Safewill Legal, specialise in the preparation and signing of Probate applications. If you engage a Probate lawyer, you can feel confident that your application has been prepared and signed properly and in accordance with the relevant legislation and rules.

Filing fee

You must pay the correct filing fee when you lodge the documents. The filing fee is calculated based on the value of the assets and property in the estate.

The scale of Probate filing fees in NSW (as of July 2024)) is as follows:

Probate filing fees in NSW

Your Probate in NSW application will not be processed until the filing fee is paid.

The filing fee can be paid by bank cheque, or via credit card/EFTPOS. If you need to pay by bank cheque, then you must include the cheque with the bundle of documents when they are submitted for lodgement.

If you would like to pay via credit card/EFTPOS, you must lodge the documents, wait to receive an invoice from the Supreme Court of NSW, and pay that invoice via the phone. There are no online payment options as at the date of writing this guide.

Lodgement

Once the documents have been signed, you will need to collate the documents for lodgement:

• Original signed UCPR Form 111 – Probate Summons

• Original Will (do not remove any staples or fastenings)

• Original Codicils (if applicable)

• Original signed UCPR Form 118 – Affidavit of Executor with the following annexures directly behind it

  • Original death certificate

  • Original signed UCPR Form 117 - Inventory of Assets

  • Any other signed annexures (as applicable)

• Two (2) sets of the following documents stapled

  • UCPR Form 112 – Grant of Probate

  • Photocopy of the Will and any Codicils

  • Photocopy of the signed UCPR Form 117 - Inventory of Assets

• A4 self-addressed and pre-paid envelope (the Grant of Probate will be returned to the executor in this envelope)

Send the bundle of documents to the Probate Registry.

Time frame

It normally takes the Supreme Court of NSW 4-6 weeks to review the application and make a Grant of Probate.

If there are any issues with the application, or if further information is required, the court will send you a requisition. A requisition is a request for further information or documentation. Most requisitions can be resolved in a straightforward manner.

Obtain the Grant

Once your application is approved by the court, you will obtain a formal Grant of Probate from the court of NSW.

The Grant will look like a set of bound pages with UCPR Form 112 – Grant of Probate as the cover page, followed by a copy of the Will (and any Codicils, if applicable) and a copy of UCPR Form 117 – Inventory of Assets. There will be a red sticker on the front page, which is the official seal of the court, together with a signature from the Probate Registrar.

Administer the estate

Lodge Notice of Intended Distribution

The Notice of Intended Distribution (the Second Notice) notifies the public that the Executor has obtained a Grant of Probate and intends to distribute the assets of the estate to the beneficiaries of the Will.

If the Second Notice is lodged correctly, you must wait until the later of:

• 30 days after the Second Notice was published; or

• 6 months after the date of death;

• before you can distribute the estate to beneficiaries.

By lodging the Second Notice, and waiting the correct amount of time, you (in your capacity as Executor) have personal protection against creditors of the estate, or any potential family provision claims, of which you may not yet be aware.

If this step is not followed correctly, and an Executor distributes the estate too early, they may be personally liable to satisfy any outstanding estate liabilities and debts.

The process for lodging the Second Notice is similar to the process for lodging the Notice of Intended Application (discussed above). The Second Notice is published on the NSW Online Courts and Tribunals Registry website .

The fee for publishing the Second Notice is $48.00 (as at time of publication). You will need to enter your credit card details to pay for the Notice online, if you are publishing it yourself.

Open estate bank account

In most situations, an Executor may need to set up a bank account in the name of the deceased to fulfil their duties. In order to set up an estate bank account, the bank will likely require certified copies of the Grant of Probate and death certificate.

As assets of the estate are redeemed and accounts closed, you should have the funds from these accounts paid into the newly established estate bank account. This will assist with record-keeping and helps ensure that no funds are misappropriated for personal use (either by mistake or intentionally).

Estate tax return

Depending on the assets of the estate, and how they are being dealt with in the administration of the estate, an estate tax return may be required.

It is recommended that you engage an Accountant to assess whether an estate tax return will be required, and if so, to prepare the relevant paperwork for lodgement with the Australian Tax Office.

Arrange payment of liabilities

The person named as executor is responsible for arranging the payment of outstanding funeral and estate expenses, as well as any outstanding debts or liabilities of the deceased (including tax liabilities). These amounts can be paid from the estate bank account.

It is important to note that all liabilities and estate expenses must be paid before funds can be distributed to beneficiaries.

Distribute the estate

Once executors have a grant of probate, have waited the appropriate notice period following the publication of the Second Notice, and all liabilities and estate expenses have been paid- they may arrange to distribute the residuary estate to the beneficiaries named in the Will.

If there is any property of the deceased person to be transferred to a beneficiary (or beneficiaries), executors will need to engage a property lawyer or conveyancer to complete the relevant transfer paperwork.

Alternatively, it may be that executors and/or the beneficiaries decide that the property should be sold. In this case, the proceeds of sale of the property would be distributed to beneficiaries in accordance with the Will.

Depending on the assets of the estate, there may be a need to engage other professionals to assist you in dealing with and distributing the assets of the estate. If you are unsure of any aspect of administering the estate, it is best to obtain legal advice.

To wrap up

Once probate is granted by the Supreme Court of NSW, all liabilities of the estate have been paid, and all assets of the estate have been distributed, your role as Executor will cease. However, it is important that you retain all documents and information relating to your administration of the estate somewhere safe in case they are ever required again.

How Safewill can help

Safewill Legal provides affordable and flexible legal support to help you write your Will, or navigate the probate process. From how to write your online notice for a probate grant, to letters of administration, joint tenant queries and everything in between- our team of experts can help.

Reach out today on1800 103 310 , or via livechat now.