A guide to probate in NSW

A Complete Guide to Probate in NSW

12 October 2021 | Property

The loss of a loved one is a heavy burden to bear. 

In New South Wales (NSW), it’s likely that you’ll also have to deal with the administration of the deceased estate through a grant of probate.

You’ll be responsible for managing the deceased person’s affairs, including any money, financial or physical assets and any other worldly possessions your loved one left behind. 

Today, we’ll shed light on the probate process to make it easier for you to handle. In this article, you’ll learn more about probate, including how to apply for NSW probate.

What Is Probate?

If your loved one leaves behind a will, the courts have to approve that it’s valid before the executor can receive and distribute property belonging to the deceased. 

A grant of probate gets issued when the New South Wales Supreme Court certifies the deceased person’s will to be their true last will and testament. 

The grant of probate is, therefore, the court’s way to provide formal recognition of the will’s validity and give legal permission to the executor to administer the deceased estate. 

After the grant is issued, you can manage the deceased person’s property and finances. It’ll also fall on you as the executor to make arrangements about the payment of the deceased’s debts. 

When Is Probate Necessary?

Probate applications aren’t necessary in some cases since there’s no statutory requirement that mandates the probate process. You’ll find that some financial institutions don’t require the grant of probate to release funds. 

Also, if your loved one didn’t have a written will, then there’s no need for an NSW probate application. Instead, you’ll be required to get Letters of Administration from the courts.  

ParameterGrant of probate requiredGrant of probate may not be necessary
Real Estate Property is registered in the deceased’s name or has no clear share of ownership in the property.The deceased didn’t own property or property passes immediately to the joint owner.
Financial wealth

Note: Rules may differ with financial institutions

If they held different financial assets like stocks or bonds. They had very little to no financial assets besides a bank account.
WillThey left a recognised will lodged with relevant wills authority.They didn’t leave a will. 
ValueThe gross value of the deceased’s belongings is significantly high.The total monetary value of their assets is low.

 

Talk to an experienced and qualified lawyer to see whether you need to go through probate or get letters of administration to administer the estate.

How Does Probate Work?

Regulations in New South Wales stipulate that you must apply for probate within six months from the death of your loved one. 

In addition, only an executor named by the deceased’s will can be legally permitted to file the probate application (provided they are above 18 years). 

If the executor is a minor, the court may grant probate to the other named executors and allow said minor to apply for probate once they turn 18. 

If the under-aged individual is the sole executor, you’ll need a lawyer to help you approach the courts to determine a way forward. 

So, What Are the Steps in Applying for Probate in NSW?

Here are the steps you will need to take to apply for NSW probate.

Step 1: Give Notice of Intended Application for Probate

Notify the Supreme court of NSW of your intention to apply for a grant of probate on the NSW Online Registry and pay the intended application fee.

Step 2: File Your Application 

Fourteen days after the probate notice on the NSW online registry, you can file your application for probate at the Supreme Court. 

You’ll be required to submit all supporting documents together with the application.

This means you’ll have to wait longer if you haven’t received the deceased’s death certificate from the Births, Deaths and Marriages NSW Registry Office. 

You should also wait until you have received replies from all the financial institutions holding the deceased’s financial assets.

Which Documents Should You Submit With Your Probate Application?

You’ll need to include the following documents with your application for grant of probate:

  • The original will. You should include the original will and any codicils (document signed by the testator that amends any provision of the will). A valid will or codicil is in writing and includes the signatures of the deceased and two witnesses.If you can’t find the original will, you can include a copy with your application. However, you’ll have to explain in the affidavit of executor where you found the document and what you’re doing to find the original will.
  • Summons of probate. If an interested party has contested the will, the court requires you to include these summons with the application.
  • Affidavit of executor. Take a look at what you should include in the affidavit here.
  • Death certificate. You should also include the original death certificate and a copy certified by a solicitor or the justice of the peace. If you don’t include the certified copy, the original death certificate won’t be returned to you.
  • Record of property. Include two copies of the inventory of property—listing all assets owned by the deceased in NSW. Include full details of each asset and its estimated value.Assets outside of NSW can be noted under a separate heading. The executor(s) must sign the property list and get the solicitor to sign as a witness.
  • Grant of Probate. Include two copies of the grant document that you’ll fill in to confirm that you’re the nominated executor of the deceased’s estate.The grant of probate documents should include the case number and all details about the deceased person. Remember not to sign; it’ll be signed and sealed by the NSW registry.

How Long Does Probate Take In NSW?

The grant of probate process in New South Wales should take one week from when you send all the correct information to the Supreme Court. However, a more realistic time frame is about 2–6 weeks depending on the waiting list of applicants.

If anything is missing or not filled in correctly, the court will write to you, letting you know what’s wrong and what you should do about it. 

Tip: Make sure to double-check that you:

  • Used the right forms
  • Filled in all the correct details 
  • Included all the necessary supporting documents

If the court sends a written requisition for any changes, your application will have to rejoin the queue making the process much longer. If you need help with filing, contact MDV Family Lawyers to avoid unnecessary delays in the process.

How Much Does It Cost to Apply for Probate?

How much you pay for the court filing fee will be determined by the gross value of the deceased’s estate.

Here’s the breakdown of the fees per total worth of the testator. 

Value Filing Fee
Less than $100,000.00Nil
$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
$1,000,000.00 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

 

You can pay the filing fee via:

  • Bank or Credit Union Cheques drawn to the Supreme Court of New South Wales
  • Solicitor firm cheques ( personal cheques aren’t accepted)
  • Debit and major credit cards like VISA, Mastercard or AMEX (if you’re paying in person or over the phone)
  • Cash 
  • Money Order

How Will I Know That the Court Has Granted Probate?

When the process is complete, the grant of probate will be mailed to you. You’ll need to enclose a self-addressed, postage-paid envelope with the application for the Supreme Court to send your document. 

Once the court issues the grant of probate, it becomes a matter of public record—anyone who so wishes can request the grant from the Supreme Court. However, the inventory of property will only be available to beneficiaries. 

What’s the Next Step After the Grant of Probate Has Been Issued? 

After the grant is issued, you can carry out your duty as the executor.

With some exceptions, funds due to the estate won’t be paid directly into your account, so you’ll need to open an account for the estate. You’ll usually be expected to complete the distribution of the estate to concerned beneficiaries within one year. 

Note that as an executor, you may be held personally liable for the estate’s debts within six months from the testator’s death. So, seek legal advice to get help with how to navigate the distribution to avoid personal liability. 

Contact MDV Family Lawyers to tap into our vast experience and expertise in practising family law in the Nowra, New South Wales area. 

We’re happy to hold your hand throughout the probate process and provide you with affordable legal advice on all relevant matters

The moment I met Melissa, I knew she was the person I wanted in my corner. She listened to me without interruption, then, after some questions, explained the options available and possible outcomes. She was always straightforward, reassuring and positive. I would recommend MDV Family Lawyers. – YM, St George’s Basin.

Schedule an appointment with MDV Family Lawyers of New South Wales today.