Probate & Estate Administration
What is Probate
When a person dies leaving assets in NSW, all assets of the deceased (both real estate and personal property) are deemed to be vested in the NSW Trustee by virtue of the Probate and Administration Act
If the deceased died leaving a valid Will, it is the duty of the executor named in that Will to call in the assets, pay liabilities and distribute the estate to the beneficiaries so named.
In order to gain the authority to carry out their duties, the executor can apply to the Supreme Court of NSW for a Grant of Probate of the deceased’s last Will.
General info
Grant of Probate
The Grant of Probate is not only proof that the person named in the Grant is entitled to handle the assets, but upon the Grant of Probate all assets of the deceased are vested in the name of the executor and not the NSW Trustee.
Once Probate has been obtained, asset holders (such as the Bank, Land Registry Services, Aged Care Facility or Share Registry) will release or transfer the deceased’s assets into the executor’s name so that the executor may go about their duties.
An Application for a Grant of Probate must be in the prescribed form and satisfy the Supreme Court of NSW that the Probate and Administration Act and Supreme Court Act have been complied with.
Castrikum Adams Legal offers Probate services enabling executors to obtain Probate at a fixed cost, quickly and hassle free to ensure that you meet your obligations as executor in a timely manner.
Once engaged we commence the Application by arranging for notice of the intended Application for Probate to be published via the online Court. We then draft all the required Court papers and meet with you to sign the Application. Following this meeting, we lodge the Application with the Supreme Court of New South Wales and notify you once the Grant of Probate has returned. Finally, upon receiving the Grant of Probate we organise for a further notice to be published via the online portal in order to protect you from any claims of creditors.
See our FAQ’s at the bottom of this page.
Probate Fees & Costs NSW
Being an executor is a heavy responsibility. There is much to do, and your obligations do not end simply by obtaining the Grant of Probate.
We will help you to obtain the Grant of Probate to give you legal power to administer the estate, and we can also assist you to administer the estate.
By instructing Castrikum Adams Legal, you are choosing a trusted team and you will be fulfilling your duties correctly and professionally.
Professional costs to obtain the Grant of Probate are regulated by the Legal Profession Uniform Application Act which calculates the professional costs according to the gross value of the estate’s assets.
See our FAQ’s at the bottom of this page.
How long does Probate take in NSW?
The first step in an Application for a Grant of Probate is to publish a notice via the online Court that the executor intends to apply for Probate of the last Will of the deceased.
An Application cannot be filed with the Court within 14 days of this notice.
Provided that the assets and liabilities of the deceased are known, upon expiration of the 14-day period, the Application may be filed in the Supreme Court of NSW Probate registry. To enable a quick Application, we will meet with you to sign the Application as soon as the 14 days has elapsed. We prepare all of the documents required and have experience from the simplest of Probate Applications to the most complex.
Once filed, the Application is processed by the Court and if found to be in order the Grant of Probate is sealed with the mark of the Supreme Court of NSW and returned to us. While processing times vary based on the number of Applications before the Court, generally Applications lodged are sealed and returned within 4 to 8 weeks of filing.
See our FAQ’s at the bottom of this page.
Role of Executor
The role of executor comes with several, often complicated responsibilities. Anyone appointed as an executor in NSW will have the following responsibilities when administering your Will:
Locating the Will
The first step an executor needs to take is to locate the Will. In most cases, the executor will have been informed of the Will’s location before the deceased’s passing.
Organising Funeral Arrangements
An executor in NSW will be required to arrange the funeral of the deceased according to the wishes laid out in the Will.
This should be carried out as soon as possible after death.
It is important for the executor to follow the deceased’s wishes as carefully as possible to avoid any legal consequences.
For example, it is illegal in NSW to cremate somebody against their wishes.
When organising the funeral, the executor should consider discussing the arrangements with the deceased’s family, especially if there are religious considerations.
Obtaining Probate – See Grant of Probate above.
Protecting the Estate
It is the role of the executor to protect the assets of the estate.
This may involve storing valuables, keeping surplus funds invested, insuring all property and protecting any business interests.
The executor must also make sure the assets of the estate are not diminished due to their action or inaction.
This might occur if the executor fails to administer the estate within the prescribed time limits and incurs unnecessary legal costs.
In situations such as this, the executor may be held personally liable for any reduction in the estate assets.
Seeking the advice of an experienced lawyer will help an executor ensure this doesn’t occur.
Determining Assets and Debts
The executor will need to confirm the assets and debts held by the estate at the time of the Will-maker’s death.
This is achieved by contacting financial institutions, relevant companies, and performing land and property searches.
The executor will prepare a statement of assets and liabilities covering:
- Personal effects
- Taxation details
- Cash and other securities
- Business Interests
- Real Estate
- Debts Owing
- Debts Due
Defending the Estate
In the case where someone wants to challenge or contest the Will, it is the executor’s job to defend the estate. Any executor in this position should seriously consider securing the services of a lawyer to guide them through the legal process related to a contest to a Will.
Distributing the Estate
Once the assets of the estate have been established, and all debts paid, the executor will then distribute the estate to the beneficiaries.
This generally involves transferring cash and assets to the named beneficiaries.
Unless there are extenuating circumstances, an executor must administer the estate within 12 months of the Will-maker’s death.
Keeping Proper Records and Receipts
Executors are expected to keep proper records and receipts of all assets transferred in the distribution of an estate.
Although the role of executor is generally unpaid, executors are entitled to reimbursement for any out of pocket expenses related to the administration of the Will.
Keeping proper financial records and saving receipts will make sure the executor is repaid from the estate for any reasonable admin costs.
Letters of Administration
If someone close to you has recently died and did not leave a Will, you may need to apply for a Letter of Administration. The Supreme Court issues this document, giving you the legal authority to administer the deceased person’s estate.
What is a letter of administration?
A Letter of Administration is a Grant issued by the Supreme Court that gives a person authority over a deceased’s estate.
When are letters of administration in NSW required?
Applying for Letters of Administration in NSW is necessary if the deceased didn’t leave a Will. In this case, the Court usually grants Letters of Administration to the person who inherits most under intestacy rules (when someone dies without a Will).
As Letters of Administration give you authority over their estate, you must apply as soon as possible after the person’s death. They may also be required when there is a Will, and all executors in the Will either choose not to fulfil the role’s responsibilities or are unable to act.
Who can apply for a Letter of Administration in NSW?
The Probate and Administration Act outlines the list of eligible people to apply for a Letter of Administration in NSW. Typically, the Court will issue the Grant to an adult entitled to inherit a portion or entire estate.
If there is more than one person who is eligible to apply, they can jointly apply, or one person can apply with endorsement through a written affidavit by the other beneficiaries. If the beneficiaries can’t agree on who should apply, the Court will usually grant the closest living relative, such as a spouse or children.
Things to consider before applying for a Letter of Administration
Before you can apply for Letters of Administration NSW, you’ll need to check that there isn’t already a Will. If the deceased left a valid Will and appointed an executor, they are responsible for administering their estate.
If there is no Will, Letters of Administration may go to the person who inherits most under intestacy rules. However, there are some other things you’ll need to consider before applying for Letters of Administration NSW:
- You must be over 18 years old and act competently
- You can’t have a criminal conviction
- You must not be bankrupt or insolvent
Castrikum Adams Legal offers services enabling you to obtain Letters of Administration at a fixed cost, quickly and hassle free to ensure that you meet your obligations as an administrator in a timely manner.
We can draft all the required Court papers and meet with you to sign the Application. Following this meeting, we lodge the Application with the Supreme Court of New South Wales and notify you once the Grant of a Letter of Administration has returned. Finally, upon receiving the Grant of a Letter of Administration we organise for a further notice to be published via the online portal in order to protect you from any claims of creditors.
It is important to understand the process. The Letters of Administration Application form contains strict instructions that must be adhered to, or the Court could reject your submission.
- Ensure there is no valid Will
- Obtain a death certificate from the Registry of Births, Deaths and Marriages
- Determine who is entitled and should apply under the rules of intestacy
- Submit a Notice of intention on the NSW online registry
- Complete the necessary forms
- File your application with the Supreme Court of NSW
- Receive the Grant of Letters of Administration
What is the fee to apply for a letter of administration in NSW?
Fees for obtaining the Grant of a Letter of Administration are calculated in accordance with the Supreme Court scale of fees based on the gross value of the estate. To see the scale of fees, click here:
How long does the process take?
After the Application is submitted it can take anywhere from 4-8 weeks, depending on how busy the Supreme Court of NSW is, before the Grant is issued.
To see the current processing times for Applications, click here:
The whole process of applying for Letters of Administration in NSW can take anywhere from a few weeks to several months. You must apply within six months of the death.
The time it takes to receive the grant will depend on how complex the deceased’s estate is and how many beneficiaries are involved.
What happens after obtaining a letter of administration?
This process is very similar to the process for a Grant of Probate (hyperlink to our Grant of Probate)
Are letters of administration in NSW always granted?
The Court doesn’t always grant Letters of administration. If this happens, you can ask for reasons from the Court and may reapply if you can address the issues raised. Sometimes the Court might decide that another person entitled to administer the estate.
Intestacy – Who is entitled to the assets of the deceased if there is no Will?
If the deceased has died without leaving a valid Will, or if there is a Will which does not dispose of certain assets, then the distribution of assets is determined according to the rules of Intestacy as contained in the Succession Act.
Under the rules of Intestacy, the estate will pass depending on the deceased’s circumstances as at the date of their death. The rules for the more common scenarios are set out as follows:
- Where the deceased is survived by a Spouse (being someone who was married to the deceased or in domestic partnership immediately before death) and leaves behind no children.
- The Spouse is entitled to the whole of the estate (after the payment of funeral, estate expenses (including legal costs) and debts).
- Where the deceased is survived by a Spouse and children of the relationship.
- The Spouse is entitled to the whole of the estate.
- Where the deceased is survived by a Spouse and children of a former relationship.
- The Spouse is entitled to:
- The deceased’s personal effects; and
- The Statutory Legacy (which in December 2005 was $350,000.00 but is adjusted for CPI); and
- One half of the remainder.
- The children are entitled to one half of the remainder, and if more than one in equal shares.
- The Spouse is entitled to:
- Where the deceased is survived by children but not a Spouse.
- The children are entitled to the whole of the estate and if more than one in equal shares (please note that there are special provisions where a child has died before the deceased leaving children of their own).
- Where the deceased is survived by his or her parents, leaving no Spouse or children.
- The parents are entitled to the whole of the estate, and if more than one, in equal shares.
- Where the deceased is survived by brothers or sisters, leaving no Spouse, children or parents.
- The brothers and sisters are entitled to the whole of the estate, and if more than one, in equal shares.
- Where the deceased is survived by grandparents, leaving no Spouse, children, parents, brothers or sisters.
- The grandparents are entitled to the whole of the estate, and if more than one, in equal shares.
- Where the deceased is survived by aunts and uncles (being sisters and brothers of the deceased’s parents), leaving no Spouse, children, parents, brothers and sisters or grandparents.
- The aunts and uncles and are entitled to the whole of the estate, and if more than one, in equal shares.
- Where the deceased leaves behind no Spouse, children, parents, brothers or sisters, grandparents, aunts or uncles.
- The State of New South Wales is entitled to the whole of the estate unless the State chooses to pay all or some of the estate to:
- a dependant of the deceased;
- a person having a just or moral claim to the money;
- any organisation or person whom the deceased might reasonably be expected to make provision;
- the trustee for any person set out above.
- The State of New South Wales is entitled to the whole of the estate unless the State chooses to pay all or some of the estate to:
At Castrikum Adams Legal, we will determine the persons entitled to the estate on a full or partial intestacy and include such within the affidavit material filed in support of the application for Letters of Administration.
Probate FAQ’s
The Grant of Probate is a document which consist of a cover page, a copy of the Last Will of the deceased person and an inventory of the deceased person’s property. Once this document is stamped by the Supreme Court of NSW it gives the nominated executor the power to deal with the assets and the liabilities of the deceased.
The process of obtaining the NSW Grant of Probate confirms the validity of the Will, the identity of the executor and the assets and liabilities of the deceased.
Various organisations ask for the Grant of Probate before they hand over assets which they hold for the deceased person.
In New South Wales, there are three main costs for Probate.
Fees for obtaining the Grant are calculated in accordance with the Supreme Court scale of fees based on the gross value of the estate. To see the scale of fees, click here:
Our fees to obtain a NSW Grant of Probate or Administration, we charge according to the Legal Profession Uniform Law Application Regulation 2015 – Schedule 3. This scale of fees is a tier-based system, which is based on the gross value of the estate. To see the scale of fees, click here:
In addition to the Solicitor and Court Fees, there are other fees to take into account.
Two online notices are required as part of your Probate Application, these are:
- Notice of Intended Application for Probate (or Administration) ($49.00 as at Nov 2022)
- Notice of Intended Distribution of Estate ($49.00 as at Nov 2022)
You might need the NSW Grant of Probate if the deceased held assets requiring the Grant of Probate for their release. Asset holders such as banks, share registries, nursing homes, the Land Titles office (NSW Land Registry Services) and other financial institutions may wish to indemnify themselves by asking the executor, or next of kin, to provide a certified copy of the Grant of Probate before they hand over the assets.
The Supreme Court of NSW does not force all executors to obtain Probate in NSW.
The first step in the process, lodging the online notice of intended Application for Grant of Probate, necessitates that 14 days pass before the executor submits their Application for Letters of Administration to give enough notice to any potential creditors or claimants on the estate.
After the Application is submitted it can take anywhere from 4-8 weeks, depending on how busy the Supreme Court of NSW is, before the Grant is issued.
To see the current processing times for Probate Applications, click here:
Executors are expected to apply for the Grant of Probate within 6 months of the death of the deceased.
If an Application for Probate is made outside of this time, then the Court will require an explanation of the reason for the delay. We can assist you in this.
There is no general depository of Wills in New South Wales. As such, the Will can be anywhere.
Generally, the solicitors who drafted the Will may have a copy. Any accountants the deceased may have used could also be holding a copy of the Will. Safety deposit boxes in banks might also hold the Will.
If you are the estate executor, we recommend that you make a thorough search of the deceased person’s personal documents to try to find the Will.
In NSW in order for a Will to be valid it must:
- Be in writing.
- Signed by the deceased person with the intention that it is their Will.
- Signed by the deceased person on every page
- Signed by 2 witness on every page
It is possible to obtain Probate of a Will which does not satisfy the above criteria. This is called an ‘informal Will’. If you find yourself in such a position, we can still obtain a Grant for you.
If a deceased person left no Will, you cannot get the Grant of Probate in NSW.
The name of the Grant that has equal power to Probate in such circumstances is called the Grant of “Letters of Administration”.
Some wills provide for an extra entitlement to the executor to account for their pains and troubles in fulfilling their duty as executor.
If the will does not provide any such entitlement, it’s still possible for the executor to obtain commission for their work.
The executor has the right to the last Will of the deceased person and a solicitor must hand it over to you.
You are not obligated to use the services of any solicitor in NSW, even if the Will names a particular solicitor who must be used.
If you have any questions, call or email us.
It is possible to get a Grant of Probate of a copy of a Will. While this is not a standard Application, we can certainly assist you with this.
If you have any questions, call or email us.
NSW Land Registry Services (LRS) requires that you obtain a Grant of Probate in these scenarios:
- The deceased was the sole registered owner.
- The deceased was a ‘tenant-in-common’.
- The deceased was a ‘joint tenant’ and the other joint tenant died before the deceased.
We can help you understand how the deceased held their property.
If the deceased was listed as a joint tenant and the other joint tenant is still alive, the property does not form part of the deceased’s estate and LPI NSW does not require that you provide a copy of the Grant of Probate to transfer the property to the surviving joint tenant. You will simply need to fill out a ‘Notification of Death’ form on their website and mail it in to them with a certified copy of the death certificate.
Many organisations will ask to provide a Grant of Probate as a way to indemnify themselves against possible claims by third parties that they gave away the deceased’s assets to the wrong person.
These organisations, such as banks, nursing homes, share registries, will rely upon the Supreme Court of NSW’s processes of testing the validity of the Will in order to be satisfied that they are releasing assets to the correct person, the estate executor or administrator.
Although it may seem like a hassle, you may imagine the myriad of ways in which enterprising individuals have throughout history defrauded such organisations resulting in the requirement of this fact-checking process that the Supreme Court of NSW now conducts.
If you don’t wish to act as the estate executor no one will force you.
You are able to renounce your executorship and allow the named substitute executor to act in your place. If a Will does not name a joint executor, or a substitute executor, then the appropriate Application is called Letters of Administration with the Will Annexed and an administrator will be appointed.
If you want to find out about the repercussions of renouncing your executorship, just give us a call or drop us a line.
Although asset holders such as banks, share registries and nursing homes may sometimes deposit or write out cheques directly to the beneficiaries of the estate, they are much more likely to issue cheque payable to “The Estate”.
The executor’s personal bank account will not be able to accept a cheque payable to “The Estate” and they will need to set up a “Deceased Estate Account”. Executors are generally able to set up these accounts at most retail bank branches.
Most executors use their solicitors Trust Accounts for this purpose. We have a fully authorised Solicitors Trust Account recognised by the Law Society of NSW available at no extra charge.
A codicil is an additional Will which generally does not cancel the last Will of the deceased, but either amends the last Will or adds an additional paragraph(s) to the last Will.
Just like a normal Will the codicil needs to be signed by the will maker and witnessed by two witnesses. A codicil which does not satisfy these requirements may nevertheless be regarded by the Court as an ‘informal codicil’.
If you think that the deceased left an ‘informal codicil’, just give us a call or drop us a line.
The Power of Attorney (POA) ceases upon death.
If you had the POA of the deceased and are also named as the executor, you can certainly apply for Probate.
The POA is not recognised as having any power in relation to obtaining a Grant of Probate, Letters of Administration or conducting estate administration.
If the deceased left property in New South Wales, and you have obtained a grant of probate or administration outside of New South Wales, you will need to apply to the Supreme Court of New South Wales to reseal the grant before you can deal with the property in New South Wales.
We can certainly help with your reseal Application. Give us a call or drop us a line.
Generally, an executor has 12 months from the date of death to distribute the estate. This is known as ‘the executor’s year’.
However, for various reasons the executor may have been delayed and has not distributed the estate within this time frame.
If this happens, we can help you prepare an affidavit of delay which will be required when submitting your Application for a Grant of Probate or Letters of Administration.
The online notice of intended Application for Probate allows creditors, and any estate challengers, to know where to send their enquiries. It notifies the public of your intention to make the Application for Probate. Whilst this used to be done in the newspapers it is now all done on the Supreme Court of NSW online registry.
The online notice of intended distribution of an estate allows executors to take advantage of ‘protection from personal liability’ if they wait for 30 days after this notice, and 6 months from the date of death of the deceased, to distribute the estate assets to the estate beneficiaries.
This means that should a creditor, or claimant on the estate, come along after this period, and you have published this online notice, you will be protected from claims personally. However, creditors and claimants may still go after the estate beneficiaries. You should seek legal advice if you have any concerns of this nature.