Probate & Deceased Estates – FAQ (NSW)

  • Probate is a grant issued by the Supreme Court of New South Wales confirming that a deceased person’s will is valid and that the named executor has authority to administer the estate.

  • Probate is usually required where:

    • The deceased owned real estate in their sole name

    • There are significant bank accounts or shareholdings

    • Financial institutions request a grant before releasing funds

    It may not be required for small estates or jointly held assets.

  • If there is no valid will, an application is made for Letters of Administration. The estate is then distributed under intestacy laws, which may not reflect the deceased’s wishes.

  • Typical timeframes:

    • Preparation (death certificate, notice, documents): 2–4 weeks

    • Court processing: 2-4 weeks

    Overall: ~4-8 weeks, assuming no complications.

  • Yes. The executor can:

    • Arrange the funeral

    • Secure property and assets

    • Obtain asset information

    • Notify banks and institutions

    However, they generally cannot distribute assets or access most funds until probate is granted.

  • Usually no. Banks may release limited funds for funeral expenses, but otherwise accounts are frozen until a grant is produced

  • An executor’s role includes:

    • Identifying and valuing assets

    • Applying for probate

    • Paying debts and liabilities

    • Managing tax obligations

    • Distributing the estate to beneficiaries

    Executors owe fiduciary duties and must act in the best interests of the estate.

  • Executors must:

    • Act honestly and in good faith

    • Avoid conflicts of interest

    • Keep proper records and accounts

    • Not benefit improperly from the estate

    Failure to comply can expose the executor to personal liability.

  • Yes. The Court can remove an executor if they:

    • Mismanage the estate

    • Delay administration unreasonably

    • Act in conflict with their duties

    Applications are made to the Supreme Court.

  • Estate assets generally include:

    • Real property held solely

    • Bank accounts in the deceased’s name

    • Shares and investments

    • Personal belongings

    Assets that do not usually form part of the estate:

    • Jointly owned property (passes by survivorship)

    • Superannuation (paid via nomination or trustee discretion)

    • Trust assets

  • Superannuation is not automatically part of the estate. It is paid:

    • To a nominated beneficiary (if binding nomination exists), or

    • At the discretion of the fund trustee

    It may be paid into the estate in some cases.

  • Before distribution, the executor must pay:

    • Funeral expenses

    • Outstanding debts (loans, credit cards)

    • Tax liabilities

    • Administration expenses

    Beneficiaries are only entitled to what remains.

  • Key points:

    • A final personal tax return must be lodged

    • The estate may require its own tax returns

    • Capital gains tax may apply on sale of assets

    Proper tax advice is critical to avoid liability.

  • Executors should generally wait:

    • At least 6 months from the date of death

    This allows time for family provision claims to be made. Early distribution carries risk.

  • A claim under the Succession Act 2006 (NSW) by an eligible person seeking provision (or further provision) from the estate.

  • Eligible persons include:

    • Spouses and de facto partners

    • Children

    • Former spouses

    • Dependants

  • A claim must generally be filed within 12 months of the date of death, although extensions may be granted in limited circumstances.

  • No. Most estates are administered without dispute. However, claims are common in:

    • Blended families

    • Unequal distributions

    • Estranged relationships

  • Most disputes resolve through:

    • Negotiation

    • Mediation

    Court hearings are relatively uncommon.

    • Costs typically include:

      • Court filing fees

      • Legal fees (often fixed for straightforward matters)

      • Disbursements (advertising, certificates)

      We provide fixed fee probate services in standard matters.

  • Yes, for proper administration expenses. However:

    • In contested matters, costs depend on outcome

    • Unreasonable conduct may result in personal cost orders

  • Yes. An executor may receive:

    • A commission approved by beneficiaries, or

    • A commission ordered by the Court

    This is usually a percentage of the estate value.

  • The executor must make reasonable efforts to locate them. If unsuccessful:

    • Funds may be held on trust, or

    • Paid into Court in some cases

  • Separate probate or resealing of the grant may be required in the relevant jurisdiction.

  • If probate is granted in another jurisdiction, it may be resealed by the NSW Supreme Court to allow administration of NSW assets.

  • This applies where:

    • There is a valid will, but

    • No executor is willing or able to act

    An administrator is appointed instead.

  • Yes, on grounds such as:

    • Lack of testamentary capacity

    • Undue influence

    • Improper execution

    These are distinct from family provision claims.

  • The legal requirement that a person:

    • Understands the nature of a will

    • Knows their assets

    • Recognises potential beneficiaries

  • The Court may still accept it as an “informal will” if it is satisfied the deceased intended it to operate as their will.

  • Simple estates: 6 months from the date of death.

  • Yes. We manage:

    • Probate application

    • Asset collection

    • Estate administration

    • Distribution

    We provide a start-to-finish service for executors.

  • As soon as possible after death. Early advice helps:

    • Avoid delays

    • Ensure compliance

    • Reduce risk of disputes

    • Fixed fee probate options

    • Clear, practical advice

    • Experience in both administration and disputes

    • Local Inner West service with responsive communication