What is probate and how do you apply in NSW?

When someone dies leaving a will, the executor often needs a grant of probate before they can deal with the estate. This guide explains what probate is, when it is needed, and how to apply in NSW.

What probate is

Probate is a grant made by the Supreme Court of NSW. It confirms that a will is valid and that the executor named in it has authority to administer the estate. With probate in hand, the executor can collect the assets, pay the debts, and distribute what is left to the beneficiaries.

When probate is needed

Probate is not always required. It depends on what the deceased owned and who holds it. Banks, share registries, and the Land Registry usually require probate before they release or transfer significant assets.

As a general guide, probate is often needed where the estate includes real estate held in the deceased's sole name, or where an asset holder requires it. Small estates and jointly owned assets that pass by survivorship may not need it. If you are unsure, we can tell you quickly whether a grant is required.

The executor's role

The executor is the person named in the will to carry out its terms. The role carries real duties. The executor must locate the will, identify and protect the assets, pay the debts and any tax, apply for probate if needed, and distribute the estate correctly. An executor can be held personally responsible for getting it wrong, so it is worth taking advice.

How to apply for probate

The main steps are as follows.

1. Publish a notice of intended application. You publish an online notice on the NSW Online Registry stating that you intend to apply, then wait the required period before filing.

2. Prepare the application. This includes a summons, a grant of probate form, an affidavit of the executor, and the original will. The affidavit sets out the assets and liabilities of the estate.

3. File with the Supreme Court. The application is filed in the Supreme Court of NSW, with the required filing fee.

4. The grant issues. If the papers are in order, the Court issues the grant of probate. The executor can then deal with the estate.

Timeframes to keep in mind

You should apply for probate within 6 months of the date of death. If more than 6 months has passed, you must explain the delay in your affidavit. Legal Aid NSW has a useful plain-language guide.

Before distributing the estate, the executor should publish a notice of intended distribution and wait the required time. An executor who gives proper notice and does not distribute too early has protection against certain later claims.

A person who wishes to contest the will by making a family provision claim generally must do so within 12 months of the date of death. This is one reason executors are cautious about distributing too early.

Frequently asked questions

How long does probate take in NSW? A straightforward grant often issues within a few weeks of filing, assuming the papers are complete and the registry is not delayed. Administering the whole estate usually takes several months.

Do I always need probate? No. It depends on the assets and who holds them. Real estate in the deceased's sole name usually requires it.

What if there is no will? Then you apply for letters of administration instead, and the estate passes under the intestacy rules.

Is there a deadline to apply? You should apply within 6 months of death, or explain any delay in your affidavit.

Keep reading

• Wills and estates
• Executor duties: what an executor actually has to do
• What happens if you die without a will in NSW?

This article contains general information only and is not legal advice. For advice about your situation, please contact us. Liability limited by a scheme approved under Professional Standards Legislation.