What Assets Require Probate in NSW?

Introduction

In New South Wales, probate is the legal process of validating a will and authorising an executor to manage a deceased person’s property. A grant of probate from the Supreme Court gives the executor the legal authority to collect assets, pay debts, and distribute the remainder of the estate.

Not all estate assets require this court approval, as some can pass directly to a new owner, while others cannot be transferred without it. This guide explains which assets typically need probate in NSW and which can bypass the process, helping an executor understand their duties and prevent unnecessary delays.

Interactive Tool: Check If Your Property & Assets Need Probate

The Definition of Probate & Why Institutions Demand It

Validation of the Will & Authorisation of the Executor

Probate is a legal process where the Supreme Court of NSW confirms that a deceased person’s will is valid. The court issues a legal document known as a grant of probate, which gives the nominated executor the official authority to manage the estate. This authorisation allows the executor to:

• collect the assets of the deceased;
• settle any outstanding debts; and
• distribute the remaining property to the beneficiaries as specified in the will.

The process serves as a critical protection for both the beneficiaries and the executor. By obtaining a grant of probate, the executor is shielded from personal liability for unexpected debts that may arise after the estate has been distributed. 

Without this formal court approval, an executor who distributes assets could be held personally responsible for any subsequent claims against the estate.

Protection for Banks & Financial Institutions Against Fraud

When an individual passes away, financial institutions like banks will typically freeze any accounts held solely in the name of the deceased. This action is a protective measure to safeguard the estate’s assets until a legally authorised person can manage them. Before releasing any funds, these institutions require a grant of probate to confirm the executor’s legal authority.

This requirement minimises significant risks for the institutions. By demanding a grant of probate, banks and other asset holders protect themselves and the estate from potential issues such as:

• Forgery or fraudulent claims on the assets.
• The possibility of an undiscovered, more recent will.
• Identity theft by individuals attempting to access the accounts of the deceased.
• Future legal disputes or claims from beneficiaries or creditors.

Common Assets That Require Probate in NSW

Solely Owned Real Estate & Property Held as Tenants in Common

If the deceased person owned real estate in their sole name, a grant of probate is almost always required to sell or transfer the property.  This requirement from land titles offices applies regardless of the property’s value, as it provides legal confirmation that the executor has the authority to manage the asset.

Property held as tenants in common also forms part of the deceased person’s estate and will require probate. In this ownership structure, the deceased’s share does not automatically pass to the surviving owners.  Instead, it must be dealt with according to the will, a process that necessitates a grant of probate.

High-Value Bank Accounts & Financial Investments

Financial institutions set their thresholds for when a grant of probate is needed to release funds. These limits vary, but probate is commonly required for accounts with balances between $50,000 and $100,000. Some banks may have thresholds as high as $152,899.02, while others are much lower.

In addition, investments such as stocks and managed funds held only in the name of the deceased are also considered estate assets. An executor will typically need to obtain probate before these investments can be accessed or transferred to a beneficiary.

Business Interests & Company Shares

When a deceased person owned a business or a share of one in their name, these interests are included in the estate. A grant of probate is necessary for the executor to manage and distribute these business assets.

Similarly, share registries and brokers have thresholds that determine if probate is required to transfer company shares. While some small parcels of shares may fall below these limits, a substantial holding will typically require the executor to obtain a grant of probate before the shares can be sold or transferred.

Superannuation & Life Insurance Paid to the Estate

Superannuation and life insurance proceeds do not always require probate. However, if the funds are directed to be paid to the estate of the deceased rather than to a nominated beneficiary, then a grant of probate becomes necessary.

In this situation, the funds become an asset of the estate, and the executor needs legal authority to collect and distribute them.

Nursing Home Bonds & Loans Owed to the Deceased

A nursing home bond, also known as a refundable accommodation deposit, is considered an asset of the deceased person’s estate. The executor will need to apply for probate to have the bond refunded.

Similarly, any outstanding loans owed to the deceased are assets that must be collected by the executor. A grant of probate provides the legal standing required to pursue the collection of these debts for the benefit of the estate.

Estate Assets That Bypass the Probate Process

Jointly Owned Property & The Rule of Survivorship

Assets held as joint tenants pass automatically to the surviving owner, avoiding the need for a grant of probate. This principle, known as the rule of survivorship, applies to assets like real estate, bank accounts, and shares where ownership is shared completely. 

When one owner dies, their interest in the asset transfers directly to the surviving joint owner by law. The executor typically only needs to provide a death certificate to the relevant institutions to have the ownership records updated.

However, this process is distinct from property held as tenants in common, where the deceased person’s share forms part of their estate and does require probate to be transferred.

Small Estates & Low-Value Bank Accounts

An estate with a modest total value that does not include any solely owned real estate may not need to go through the formal probate process.  Financial institutions often have internal policies that allow for the release of funds below a certain threshold without a grant of probate.

In these cases, the executor or next of kin can usually access the funds by providing the institution with specific documents, including:

• a certified copy of the death certificate;
• the will; and
• a signed indemnity form, which protects the institution from future claims.

Superannuation with Binding Nominations

Superannuation and life insurance policies do not always form part of a deceased person’s estate. If the deceased made a valid binding death benefit nomination, these assets bypass the probate process entirely.

The trustee of the superannuation fund or the insurance company is legally required to pay the proceeds directly to the nominated beneficiary. 

As these funds are not distributed through the will, a grant of probate is not required for their release.

Assets Held Within a Trust Structure

Any asset held within a trust is not considered part of the deceased’s personal estate. These assets are governed by the terms of the trust deed and pass directly to the beneficiaries specified in that document.

Because trust assets are legally separate from the deceased person’s own property, they are not subject to the terms of the will.  This means the executor does not need to obtain a grant of probate to manage or distribute them.

Key Steps to Obtain Probate in New South Wales

Location of the Original Will & Estate Assessment

The first step for an executor is to find the original will of the deceased person. The Supreme Court of NSW requires this document, not a copy, as it identifies who has been appointed as the executor and details how the estate should be distributed. 

If the will cannot be found, the deceased’s solicitor may have it in storage, or it could be registered with the NSW Trustee & Guardian.

Communication with Asset Holders & Estate Valuation

An executor must create a complete list of all assets and liabilities to determine the total value of the estate. This involves contacting every asset holder, such as banks, superannuation funds, and share registries, to confirm the value of each asset at the date of death. 

This process establishes which institutions will require a grant of probate before releasing funds or transferring ownership. The inventory should include everything the deceased owned and owed, such as:

• Real estate and land
• Bank accounts
• Superannuation and life insurance policies
• Shares and other investments
• Vehicles and valuable personal items
• Business interests
• A nursing home bond
• Any loans owed to the deceased

Application Submission & Executor Affidavit for the Supreme Court

To apply for probate, the executor must file an electronic application with the Supreme Court of NSW. A key part of this submission is the executor’s affidavit, which is a sworn legal statement containing detailed information about the deceased, the will, and the estate’s assets and liabilities. Any errors in this document can cause delays.

The complete application for probate must include several documents:

• The original will
• A certified copy of the death certificate
• The sworn executor’s affidavit
• A schedule listing all assets and liabilities of the estate

Timeframes & Costs for Probate Applications

The Six-Month Deadline & Expected Processing Times

In NSW, an executor should lodge the probate application within six months from the date of death. While this is the recommended timeframe, delays can complicate the administration of the estate. 

Once all necessary documents are prepared and filed with the Supreme Court, it typically takes one to two months to receive the grant of probate.

Supreme Court Filing Fees Based on Estate Value

The court filing fees for a probate application depend on the total value of the estate. The costs are structured in tiers, which means you can expect to pay more for a higher-value estate.

The fee structure in NSW is as follows:

• Estates under $100,000: No court filing fee is charged.
• Estates between $100,000 and $250,000: The fee is approximately $921.
• Estates over $5 million: The filing fee can be more than $7,000.

Conclusion

A grant of probate is essential for transferring solely owned assets, while jointly held property and superannuation with binding nominations can often bypass this court process. An executor must correctly identify which of the deceased person’s assets fall into each category to prevent unnecessary delays in administering the estate.

If you are an executor and require assistance with your duties or the application for probate, contact the team at LawBridge. For clear guidance on managing the estate administration process efficiently and correctly, speak with our estate administration lawyers.

Frequently Asked Questions