Probate is the approval granted to an 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 Will of the deceased.
Obtaining a Grant of Probate also means that the Court has formally recognised the authority of the executor to manage the estate of the deceased, in accordance with the instructions and wishes in their Will.
You can only apply for Probate if you are an Executor named in the Will.
In most cases, without a Grant of Probate, 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 estate’s assets, but Probate is normally required. Probate may not be required in the following situations:
If you have been named the Executor to someone’s Will you may have some idea of what that 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:
You can review a detailed list of tasks traditionally required of an executor by downloading our complimentary Executor Checklist.
There is no requirement that you use a lawyer to apply for Probate, and there are online resources that can help guide you through the process.
Most people, however, choose to use a lawyer because it is a technical legal process that can be complex, and if not done correctly could result in personal liability for the executor. Because of this, it is generally recommended to engage a lawyer for advice.
As part of preparing and lodging a Probate application, you will be required to swear or affirm an Affidavit and may require 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.
If there is no Will, it is still possible to apply to the Supreme Court for authority to deal with a deceased person’s assets.
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.
There is slightly more complexity involved, but the process is largely the same. To find out more about obtaining a Grant of Letters of Administration, please visit our NSW Guide to Letters of Administration.
The process of obtaining Probate requires the executor to make an application with the NSW Supreme Court, and generally 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.
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 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.
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 an application for a Grant of Probate is made by the Executor.
As explained above, it is the Executor’s responsibility to create an inventory of the estate including cash, real estate and securities, insurance policies, 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 joint tenants and/or as tenants in common.
Here are some examples of the details required for different types of assets you may come across:
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:
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.
The forms required for a standard Probate application in NSW are as follows:
It is important that you take great care when preparing these documents, or when reviewing them if they are prepared by a lawyer.
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 document can be amended accordingly.
Only an authorised witness can witness you sign your Affidavit. Authorised witnesses include:
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.
You must pay the correct filing fee when you lodge the documents. The filing fee is calculated based on the value of the assets in the estate.
The scale of Probate filing fees in NSW (as at the date of publication) is as follows:
|Value of assets||Filing fee|
|Less than $100,000.00||NIL|
|$100,000.00 or more but less than $250,000.00||$778.00|
|$250,000.00 or more but less than $500,000.00||$1,056.00|
|$500,000.00 or more but less than $1,000,000.00||$1,620.00|
|$1,00,000.00 or more but less than $2,000,000.00||$2,158.00|
|$2,000,000.00 or more but less than $5,000,000.00||$3,597.00|
|$5,000,000.00 or more||$5,996.00|
Your Probate 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 NSW Supreme Court, and pay that invoice via the phone. There are no online payment options as at the date of writing this guide.
Once the documents have been signed, you will need to collate the documents for lodgement:
Send the bundle of documents to the Probate Registry.
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.
Once your application is approved by the court, you will obtain a formal Grant of Probate.
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.
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:
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.
In most situations, an Executor may need to set up a bank account in the name of the Estate 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).
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.
The executor is responsible for arrangement 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.
Once you have waited the appropriate notice period following the publication of the Second Notice, and all liabilities and estate expenses have been paid, you may arrange to distribute the residuary estate to the beneficiaries named in the Will.
If there is an estate property to be transferred to a beneficiary (or beneficiaries), you will need to engage a property lawyer or conveyancer to complete the relevant transfer paperwork. Alternatively, it may be that you 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.
Once probate is granted, 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.