Specialist Probate Lawyers
It is extremely stressful when a loved one dies; administering the estate can be overwhelming. We have the experience and compassion to guide you through this process and help you feel supported every step of the way, understanding that this is a difficult time for you and your family.
If a person has a will, the process of administering the estate is called probate; if there is no will, or it cannot be found, the process is Letters of Administration. We aim to clarify these steps to ease your concerns. Should no will be able to be located, the deceased is deemed to have died “intestate”; in this case, assets are distributed in the following order:
- Spouse or de facto spouse
- Children
- Parents
- Brothers and Sisters
- Grandparents
Typically, the Executor of the will is responsible for administering the estate. The Executor’s duties involve, but are not limited to, applying for Probate, Collecting the assets and distributing the assets in accordance with the Will/Probate. In most cases, depending on the estate’s value, assets cannot be distributed before a Grant of Probate is obtained from the NSW Supreme Court in Sydney.
Typically, when a person dies, their assets are ‘frozen’ pending probate or Letters of Administration. The executor needs to know that they may be able to approach the deceased’s bank to cover these accounts, including funeral expenses. Creditors usually have to wait until the estate is administered to receive payment, and assets may be handled differently depending on the estate’s circumstances.
In Short:
| |
Manager / Nominee to deal with the Estate |
Status of the Will |
Division of the Estate (No Claims) |
| Probate |
Executor |
Valid Will |
According to the Will |
| Letters of Administration |
Administrator |
No Valid Will |
According to Intestacy Laws |
What do I need to do when a person dies?
- Firstly, take care of yourself and your family. Dealing with an estate can be a fairly long process that does not need to start immediately.
- Following the reporting of the death, either to the Police or Medical Professionals, you will need to organise the funeral – remember that you may be able to access the deceased’s money to do this with the assistance of their financial institution.
- Register the Death with Service NSW – typically, the Funeral Director will attend to this; however, it needs to be completed within 7 days from the date of death. Service NSW will be responsible for issuing the death certificate by post.
- Notification of Death to Services – The Australian Government runs a program called the Australian Death Notification Service, which links into a number of institutions and major corporations to make this process streamlined.s
- Start to collect together the financial records, list of assets of the estate, and any relevant documents. Your solicitor will guide you through the necessary paperwork, helping you understand each step involved in the probate process, so you do not feel overwhelmed or alone in this task.
What about Joint Property? Do I need Probate?
There is no statutory requirement to obtain probate in every case. There are a number of occasions when particular assets are not included in a person’s estate. They can include:
Property owned in Joint Tenancy
Married couples commonly hold property as joint tenants, where each owner does not own a distinct portion of the property.
If the deceased holds the property as a joint tenant with another person, probate is not required. The surviving owner must speak with a conveyancer or us to arrange a Notification of Death with NSW Land Registry Services so they can become the sole owner on title.
If people own the property as tenants in common, probate is often required because each person owns a distinct portion of the property. This will often be reflected on the certificate of title as 30 / 70 or something similar.
Joint Bank Accounts
In cases where the deceased person shares a bank account with another person, the “right of survivorship” generally applies, and probate is not required to release or transfer funds. This means that, irrespective of the will, the survivor is entitled to the account. The banks will need to be notified of the deceased’s death by one of the account holders, and the deceased’s name will be effectively removed from the account. Please note that this may not happen with mortgages, or it can take some time, which can be distressing.
Shares or Bank Accounts with Low Value
If the remaining shares or bank accounts (held in a sole account) have a small value and there is no other need for probate, the executor should approach the bank, shareholder, or financial institution to release funds to the beneficiaries in accordance with the will. Every financial institution will have different thresholds, typically ranging from $20,000 to $50,000.
Superannuation
Probate may be required in cases when there is no current and/or valid binding nomination by the deceased person. Funds can also vary greatly in cases where there is a binding nomination to pay the nominee; this can take weeks to months, depending on the fund.
Motor Vehicles
In cases where there is a will and probate is not required, the executor may be able to approach Service NSW and organise the transfer of the vehicle to the executor and/or beneficiary, especially in the case of the beneficiary being the surviving joint operator or next of kin.
Claims on the Estate – Family Provision Claims
A family provision Claim is when an eligible person (spouse, de facto partner, child, or dependant of the deceased) contests the will. This tends to occur if a person has been left out of the will, or if a person believes that, at the time the will was made, the deceased did not have the capacity or understanding to make the decisions in the will, and there has been an inadequate provision for the claimant.
Claims must be made within twelve months of the date of death, so it is critical to get legal advice on this issue.
Our fees are fixed in accordance with the scaled fees in Schedule 3 of the Legal Profession uniform Law Application Regulation, based on the value of the estate.
Our office is located Bella Vista in the Norwest Business Park in the Hills District serving NSW. We understand how difficult this time is for you. We bring years of experience providing clear information on costs and timelines so you can plan accordingly.
What is the difference between probate and letters of administration?
The key difference between probate and letters of administration lies in whether a valid will exists and who is authorised to manage the estate, which helps you understand their main distinctions.
In Short:
| |
Manager / Nominee to deal with the Estate |
Status of the Will |
Division of the Estate (No Claims) |
| Probate |
Executor |
Valid Will |
According to the Will |
| Letters of Administration |
Administrator |
No Valid Will |
According to Intestacy Laws |
What does an executor do in NSW?
The executor, broadly speaking, is legally responsible for managing the estate following a grant of probate, which includes duties such as collecting assets, paying debts, and distributing the estate according to the will. Understanding these specific responsibilities helps ensure compliance with legal obligations and reduces the risk of errors.
- Locating the Original Will and Assets;
- Applies for probate;
- Calls in the estate assets and preserves the estate ( this is more of an issue if the process is prolonged);
- Pays any debts and expenses, which include ensuring the estate and deceased person have finalised their tax obligations;
- Ensures that they keep accurate records and manage the accounts;
- Distribute the estate according to the will and probate; and
- Finalises the estate.
What documents are needed for Probate?
Although this varies from estate to estate, the typical required documents for probate applications are:
- Original Will, including any Codicils
- Death Certificate from the NSW Registry of Births, Deaths & Marriages, which verifies the death and is required to initiate probate proceedings.
- Inventory of Property (Estate Assets and/or Liabilities
- Bank Accounts
- Real Estate
- Shares and Superannuation
- Vehicles
- Personal Belonging of Value
- Any debts such as Loans, credit cards, mortgages
- Bitcoin wallet information
- Monies owed
- Executor Documents
- Identification (Passport and Driver Licence if real estate is involved)
- Proof of Address
- If Applicable:
How long do I have before I have to apply for probate?
Executors should be applying for probate within six (6) months of the death of the deceased.
If the application is outside of that time, the NSW Supreme Court will require an explanation for the delay.
How long does probate take in NSW?
There are two main steps;
- A lodgement of intention to seek a Grant of Probate form must be completed online; following this, a two-week waiting period begins before the application can be actioned. This allows creditors to notify the executor of any potential claims or debts the estate may have.
- After the application has been submitted, the time taken can vary dramatically, but the aim is generally between 3 and 8 weeks until probate is granted. If the application is rejected or additional information is needed, the process may take longer, especially if the NSW Supreme Court is busy or if further documentation is requested.
How long does the executor have to distribute the estate?
Generally, the executor has 12 months from the date of death.
Who can apply for Probate?
You can apply for probate if you have been appointed as the executor of a will.
If the executors of the will have deceased or cannot be located, another person can apply to the Supreme Court to be appointed as the administrator of the estate. This process is known as Letters of Administration with the Will annexed.
Can I apply for probate myself? Do I need a probate lawyer?
Applying for any grant of probate and/or letter of administration can be a complicated and time-consuming process. Understanding your legal obligations is essential to avoid mistakes that could cause delays or additional costs.
As an administrator and/or an executor, hiring a probate lawyer can provide reassurance and protect you against claims of misuse of office, giving you peace of mind throughout the process.
How much does probate cost in NSW?
In NSW, the cost of probate is made up primarily of the following:
- NSW Supreme Court Filing and associated fees based on the value of the estate, including mandatory notice fees such as the Notice of Intended Application; and
- Solicitor Fees, this can vary depending on the work involved; the simpler estates are based on scaled fees found in Schedule 3 of the Legal Profession Uniform Law Application Regulation, based on the value of the estate. More complex estates or disputed matters are generally charged on an hourly rate. Your solicitor should always discuss anticipated fees with you.
Generally, all these fees are paid by the estate.
How do I find the deceased's will?
There is no mandatory registry or locality in NSW for storing wills, so, technically speaking, a will can be stored anywhere. Although often a family member or close friend will know where the deceased’s will is.
Typically, wills are stored with the solicitor who drafted the will, or the solicitor will have a copy. Some other places that may be are their accountants, safety deposit boxes, and/or their private papers, etc.
We would also recommend that you search with the NSW Supreme Court, the NSW Trustee and Guardian, and any previous solicitor the person may have used.
What happens if there is no will in NSW?
If there is no will, you cannot obtain a grant of probate, and the person is said to have died “intestate”, meaning the estate is dealt with under the Succession Act 2006 (NSW).
In these circumstances, an application must typically be made by a close family member or interested party for Letters of Administration with the NSW Supreme Court.
The applicant, if deemed suitable, then assumes the role of the estate’s administrator, responsible for managing the estate according to legal requirements.
Do I need probate to update title deeds or certificate of titles?
In situations where the deceased was listed as a ‘joint tenant’ on the certificate of title, a grant of probate is not required. The surviving joint tenant needs to complete a form from the NSW Land and Title Office titled ‘Notification of Death’. This clarification helps readers determine whether probate is necessary based on the type of property ownership.
A grant of probate will be required in the following circumstances:
- The deceased was the sole registered owner
- The deceased was a tenant-in-common
- The deceased was a ‘joint tenant’, and the other tenant died before the deceased.
What happens if the executors disagree?
As with any complex and potentially emotional task, administering a deceased estate can give rise to conflict and disagreements, especially around issues like ‘beneficiaries’ or ‘administrative decisions’. This is particularly true when executors are also beneficiaries of the estate, and their administrative decisions affect their inheritance under the will.
Generally speaking, when executors disagree, understanding their obligations under the will and law can help them feel confident and responsible, reducing the risk of costly litigation. Options for resolving disputes include mediation, negotiation, renouncing their role, and court relief.