Deceased estates
Probate lawyers NSW
When someone dies leaving a will, the executor usually needs a grant of probate before banks, share registries and the land registry will deal with them. We obtain the grant and administer the estate, so you are not doing it alone while you are grieving.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Fixed fees on the regulated scale for straightforward estates, generally paid out of the estate.
The first few weeks
Nothing about an estate has to be done in the first fortnight. The one thing worth knowing early is that funeral costs can usually be met from the deceased’s own funds, even though the accounts are otherwise frozen, so the family is not left out of pocket.
Look after your family first
Administering an estate is a months long process and delaying the start by a few weeks costs nothing. Take the time you need.
Register the death
The death must be registered with the Registry of Births, Deaths and Marriages within seven days. The funeral director normally attends to this. The death certificate then issues by post and takes some weeks to arrive.
Pay the funeral from the estate
Give the invoice to the deceased’s bank. Banks will generally release funds for a funeral before probate, on production of the death certificate or the funeral account.
Notify the institutions
The Australian Death Notification Service reaches many banks, insurers and utilities in one notification. Others need to be contacted directly.
Find the original will
The original, not a copy, is what the court needs. It is usually with the solicitor who prepared it. Where to search if you cannot find it.
Start listing the assets
Bank accounts, property, shares, superannuation, vehicles, debts. Bring what you have to us and we will work out what else is needed.
Before you apply
Do you actually need probate?
There is no rule that every estate needs a grant. Probate is required when an asset holder will not release or transfer an asset without one, and for some estates that never happens. Working this out first can save the estate several thousand dollars.
Probate is usually required where
- The deceased owned real property in their sole name
- The deceased held property as a tenant in common
- The deceased was a joint tenant but the other owner died first
- Bank or share holdings in the sole name exceed the institution’s threshold
- A superannuation fund pays the death benefit to the estate rather than to a nominated dependant
- An asset holder simply insists on it, which they are entitled to do
Probate is often not required where
- Everything was held jointly with a surviving spouse or partner
- The only assets are modest sole name accounts within the bank’s threshold
- Superannuation is paid directly to a dependant under a valid binding nomination
- The only asset is a motor vehicle, which can often be transferred through Service NSW
How particular assets are treated
Property held as joint tenants. Ownership passes automatically to the surviving owner, whatever the will says. No grant is needed. The survivor lodges a notification of death with the land registry to have the title put into their sole name, which we can attend to. Property held as tenants in common is different, because the deceased owned a distinct share which passes under the will, and a grant is generally needed to transfer it.
Joint bank accounts. The right of survivorship applies and the balance belongs to the surviving account holder, again regardless of the will. The bank needs to be notified so the deceased’s name comes off the account. Joint mortgages and loans do not always follow so smoothly and can take some time.
Small sole name accounts and shareholdings. Every institution sets its own threshold below which it will release funds without a grant, commonly somewhere between about twenty and fifty thousand dollars. Ask each institution what its threshold is before assuming a grant is needed, and ask in writing.
Superannuation. Superannuation is not automatically an estate asset. Where there is a valid binding nomination in favour of a dependant, the fund pays that person directly. Where there is no valid nomination, or the nomination is to the estate, the fund will usually want to see a grant. More on superannuation and death benefits.
Motor vehicles. Where a grant is not otherwise needed, a vehicle can often be transferred through Service NSW to the executor or the beneficiary, particularly where that person is the surviving joint operator or next of kin.
If there is no will, or no executor able to act, the grant you need is letters of administration rather than probate, and the estate is divided under the intestacy rules rather than by a will. Those rules are not a simple order of priority and a surviving spouse frequently takes the whole estate. See letters of administration and intestacy.
Probate compared with letters of administration
| Probate | Letters of administration | Letters of administration with the will annexed | |
|---|---|---|---|
| Is there a valid will? | Yes | No | Yes |
| Who applies | The executor named in the will | Usually the next of kin with the greatest entitlement | Usually a beneficiary, where the executor has died, cannot be found or will not act |
| Who administers the estate | Executor | Administrator | Administrator |
| How the estate is divided | According to the will | According to the intestacy rules | According to the will |
What the executor is responsible for
An executor holds a legal office and can be personally liable for getting it wrong. The role runs well beyond obtaining the grant.
- Locating the original will and any codicils, and identifying the estate assets and liabilities
- Applying for the grant of probate
- Calling in and safeguarding the assets, including keeping insurance on foot over an empty property
- Paying the debts and expenses of the estate in the correct order of priority
- Lodging the deceased’s final tax return and any returns required for the estate
- Keeping accurate accounts and records of everything received and paid
- Dealing with any claim brought against the estate
- Distributing the estate and accounting to the beneficiaries
Where the personal risk sits. An executor who distributes the estate too early, or who distributes while a claim is on foot, can be ordered to make good the shortfall out of their own pocket. Executors who pay debts in the wrong order, or who fail to keep proper accounts, face the same exposure. This is the single strongest reason to have a solicitor act, and the cost of doing so is borne by the estate rather than by you.
The process
How a probate application works
Notice of intended application
A notice is published on the Supreme Court’s online registry stating that probate will be applied for. At least fourteen days must pass before the application can be filed. The waiting period gives creditors the chance to come forward.
Preparing the application
We prepare the summons, the executor’s affidavit and the inventory of property, and gather the original will, the death certificate and your identification. The inventory must value each asset as at the date of death.
Filing
The application is filed in the Supreme Court with the filing fee, which is set on a sliding scale according to the value of the estate.
Requisitions
The registry may raise requisitions, which are questions about the application. Common causes are alterations to the will, staple marks suggesting pages were removed, a missing attestation clause, or a discrepancy in the deceased’s name between the will and the death certificate. Each requisition adds time.
The grant issues
Once satisfied, the registry issues the grant of probate. That document is what banks, share registries and the land registry act on.
Calling in the assets
Accounts are closed, shares sold or transferred, property sold or transmitted to the beneficiaries, and the estate’s own account is used for everything received and paid.
Debts, tax and notice of intended distribution
Debts and expenses are paid, tax returns lodged, and a notice of intended distribution published. That notice protects the executor, provided the timing is right and no claim has been notified.
Distribution and accounts
The estate is distributed in accordance with the will and the beneficiaries are provided with a statement of the estate’s receipts and payments.
Timing, and why executors should not rush the distribution
Three separate time periods matter, and they are often confused with each other.
Six months to apply
The application for probate should be made within six months of the death. If it is filed later, the court will want an explanation for the delay, which is usually straightforward to give but adds an affidavit and some cost.
Twelve months to distribute
An executor is generally not obliged to distribute before twelve months from the date of death. This is the executor’s year, and beneficiaries pressing for money sooner are not entitled to it.
Twelve months for claims
A family provision claim must generally be brought within twelve months of the date of death. Until that period has run, the possibility of a claim has not closed.
The trap. An executor is protected against personal liability for a family provision claim only if the estate is distributed no earlier than six months after the death, after publishing a notice of intended distribution and letting the required period run, and provided the executor has no notice of a claim. Distributing before that, or distributing knowing that someone is unhappy, exposes the executor personally. If anyone has raised the prospect of a claim, do not pay anything out until you have advice. More on claims against an estate.
What we will need from you
This varies with the estate, but the usual list is:
- The original will and any codicils
- The death certificate issued by the Registry of Births, Deaths and Marriages
- Your identification, and proof of address
- Bank statements and account details, including any loans, credit cards and mortgages
- Rates notices, title details and insurance for any property
- Shareholdings, managed funds and superannuation statements
- Vehicle registration details
- Details of personal items of real value, and of any money owed to the deceased
- Access details for digital assets, including cryptocurrency wallets, which are frequently lost entirely because no one has the keys
- Where relevant, marriage, divorce, birth or adoption certificates, and the death certificate of any executor or beneficiary who has died
What probate costs
There are two components, and both are ordinarily paid out of the estate rather than by the executor personally.
Court fees
The Supreme Court filing fee is set on a sliding scale according to the gross value of the estate, so a larger estate pays more. There is also a fee for publishing the notice of intended application. These are fixed by regulation and are the same wherever you go.
Our fees
For a straightforward estate we charge on the regulated scale for uncontested probate work, which is calculated on the value of the estate. You will know the figure before we start. Complex or disputed estates, and additional work such as selling property or dealing with a claim, are charged separately and always disclosed to you in advance.
When it is not straightforward
The original will is lost or damaged
A will that cannot be produced may be presumed to have been revoked. A grant can still be sought on a copy, but it takes evidence about the circumstances and about the deceased’s intentions.
The document is informal
Where the deceased left a document that was not signed or witnessed properly, including notes and electronic documents, the court can be asked to admit it. It is a separate and more involved application.
The executor cannot or will not act
An executor can renounce, provided they have not already started dealing with the estate. Where the executor has died, is overseas, or has lost capacity, someone else applies instead.
Executors who disagree
Co-executors generally have to act together, so a deadlock stops the estate. Mediation, one executor renouncing, or an application to the court are the ways out, and the earlier that is confronted the cheaper it is.
Assets overseas
A grant made in some overseas jurisdictions can be resealed here, and others require a fresh application in that country. We have acted in cross border estates and will tell you at the outset what each jurisdiction requires.
The will is challenged
Where validity is in issue, the grant is sought in solemn form and the matter becomes contested litigation. Executors have a duty to uphold the will, and also a duty to act reasonably about settling.
Common questions about probate
How long does probate take in NSW?
Fourteen days must pass between publishing the notice of intended application and filing. Once filed, a straightforward application is commonly granted within a few weeks, though registry times move about and a busy period will stretch it. Requisitions add time, sometimes considerably. Administering the estate after the grant usually takes several more months, and longer where property has to be sold.
Can I apply for probate myself?
You can. Whether you should depends on the estate. The application itself is a formal court document and the registry is exacting about it, so errors mean requisitions and delay. More importantly, the risk in administering an estate sits with the executor personally, and a solicitor acting for you carries much of that risk. The fees come out of the estate.
Who can apply for probate?
The executor named in the will. If the executors have died, cannot be found or are unwilling to act, another person, usually a beneficiary, can apply for letters of administration with the will annexed and administer the estate on the terms of the will.
Do I need probate to transfer the house?
If the deceased held the property as a joint tenant with a surviving owner, no. The survivor lodges a notification of death and the title is put into their name. A grant is required where the deceased was the sole registered owner, held as a tenant in common, or was a joint tenant whose co-owner died first. The difference between joint tenants and tenants in common.
Is there death duty or inheritance tax in Australia?
No. There is no death duty. That does not mean there are no tax consequences. The deceased’s final return still has to be lodged, the estate may need its own returns, and capital gains tax can arise when the estate or a beneficiary later sells an inherited asset. We work with your accountant on this rather than guessing at it.
Can an executor be paid for their work?
An executor is not automatically entitled to payment, though they are entitled to be reimbursed for expenses. Commission can be allowed where all beneficiaries consent, or by order of the court, and the amount depends on the work actually done. A will can also provide for it expressly.
What if a beneficiary has died?
It depends on the will. Many wills provide for the gift to pass to that person’s children, or to the other beneficiaries. Where the will says nothing, the gift may fail and fall into the residue, or into intestacy. Bring us the will and we will tell you where the gift goes.
What if the estate does not have enough to pay the debts?
The estate is insolvent, and there is a set order in which debts must be paid. Beneficiaries receive nothing until creditors are paid in full. An executor who pays the wrong creditor first, or who pays a beneficiary at all, can be personally liable for the shortfall. Get advice before paying anything.
How do I find out whether a grant has already been made?
Notices of intended application and grants are published on the Supreme Court’s online registry, which can be searched. If you suspect someone has applied without telling you, or you want to prevent a grant issuing while you take advice, contact us promptly because there is a procedure for that and it has to be done before the grant is made.
We will take the estate off your hands
Bring us the will and whatever paperwork you have. We will tell you whether a grant is needed at all, what the estate is likely to cost to administer and how long it should take. You deal with a principal of the firm throughout, and our fees are ordinarily paid from the estate rather than by you.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153, in the Norwest Business Park. We act for executors across New South Wales.