When Probate is Required in NSW and How to Apply for Probate

Introduction

In New South Wales, when a person passes away leaving a valid Will, the executor named in that Will is responsible for managing their estate. To fulfil this role, an executor often needs a Grant of Probate, which is a legal document issued by the Supreme Court of NSW that validates the will and provides the authority to act. Financial institutions and government bodies require this grant before they will transfer assets such as property, release significant bank funds, or manage shareholdings.

Understanding when to apply for probate is a critical part of the probate process for any executor. This article explains the specific situations that require a grant of probate in NSW, including for assets like real estate, superannuation, and investments. It also outlines the circumstances where probate may not be needed and details the step-by-step process for making an application to the court.

Interactive Tool: See If You Need to Apply for Probate in NSW

What is a Grant of Probate in New South Wales?

Validating the Will & Authorising the Executor

A grant of probate is a legal document issued by the Supreme Court of New South Wales. It officially confirms that a deceased person’s will is valid and represents their final wishes. The Supreme Court of NSW only has jurisdiction to issue a grant if the deceased person left assets within the state.

This court order also gives the executor named in the will the legal authority to manage the estate. Once probate is granted, the executor can begin their duties, which include:

• Collecting all of the deceased person’s assets, such as funds from bank accounts.
• Paying any outstanding debts and taxes the estate owes.
• Distributing the remaining assets to the beneficiaries as specified in the will.

Protecting Financial Institutions & Asset Holders

Financial institutions and other organisations holding a deceased person’s assets require a grant of probate before they will release them. Banks, share registries, and property authorities need this official document to ensure they are dealing with the legally authorised representative of the estate.

This requirement protects these institutions from potential risks and future legal claims. By relying on the court-issued grant of probate, they safeguard themselves against:

• Fraud or identity theft.
• The possibility of an undiscovered, more recent will.
• Releasing assets to the wrong person.
• Disputes among family members or beneficiaries.

When Executors Must Apply for Probate in NSW

Real Estate Owned Solely or as Tenants in Common

A grant of probate is almost always required to deal with real estate in New South Wales owned by the deceased person. If a property was held solely in their name, probate is necessary before the executor can legally sell or transfer it to a beneficiary.

The same rule applies if the deceased owned a share of a property as “tenants in common”. A tenant in common’s share forms part of their estate, requiring the executor to obtain probate to manage and distribute this specific portion of the property according to the will.

Bank Accounts Exceeding Financial Institution Thresholds

Financial institutions require a grant of probate before releasing funds from a deceased person’s account if the balance exceeds a certain limit. Each bank, credit union, and building society sets its own internal threshold, which can vary significantly.

Generally, probate is needed for accounts holding more than $50,000 to $100,000. For instance:

• some major banks may set their limit around $76,000; and
• others like Westpac may have a higher threshold of over $114,000.

It is important for an executor to contact each institution directly to confirm its specific requirements.

Company Shares & Investment Portfolios

An executor will need to apply for probate to manage shares or investment portfolios held in the deceased person’s sole name. Share registries, such as Computershare and Link Market Services, require the legal authority of a grant of probate before they will transfer or sell shares.

Similar to banks, these registries have their own policies and value thresholds for releasing assets. Even for smaller holdings, probate is commonly required to ensure the executor is legally authorised to act on behalf of the estate.

Superannuation & Life Insurance Payable to the Estate

Superannuation and life insurance proceeds do not always form part of a deceased person’s estate. If a valid beneficiary was nominated, the funds are typically paid directly to that person, bypassing the need for probate.

However, probate is required when these funds are made payable to the estate itself. This often happens if:

• no beneficiary was nominated;
• the nomination was invalid; or
• the deceased specifically directed the proceeds to their estate.

In these cases, the executor must obtain a grant of probate to collect the funds and distribute them according to the will.

Complex Estates Involving Litigation or Charitable Gifts

A grant of probate is necessary when an estate becomes involved in legal proceedings. For example, if a family member initiates a family provision claim to challenge the will, the executor will need the court’s formal authority to represent the estate.

Probate is also required to distribute gifts to registered charities named as beneficiaries in the will. The grant provides the legal standing needed to transfer the funds and obtain official receipts, ensuring the deceased person’s charitable wishes are fulfilled correctly.

Situations Where Executors May Not Need Probate

Assets Held as Joint Tenants

When assets are owned as ‘joint tenants’, they automatically transfer to the surviving owner upon death through a legal principle known as the ‘rule of survivorship’. This means these assets do not form part of the deceased person’s estate and can bypass the probate process in NSW. Common examples include:

• The family home or other real estate held by spouses.
• Joint bank accounts.
• Jointly held shares or investments.

The surviving owner typically only needs to provide a death certificate to the relevant institution, such as a bank or the NSW Land Registry Services, to have the asset formally transferred into their name. However, it is important to distinguish this from owning property as ‘tenants in common’, where each person owns a distinct share that does form part of their estate and will require a grant of probate to be dealt with.

Small Estates with Low Value Assets

Probate may not be necessary for small estates that do not contain real estate and only consist of assets with a low value. Many financial institutions have policies that allow for the release of funds below a certain threshold without a grant of probate. This threshold varies but is often around $50,000.

To release these funds, the executor or next of kin will usually need to provide the institution with:

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

Executors should contact each asset holder directly, as requirements can differ and share registries may have stricter policies than banks.

Superannuation with a Valid Binding Nomination

Superannuation benefits do not automatically form part of a deceased person’s estate in New South Wales. If the deceased made a valid binding death benefit nomination, the superannuation fund trustee is required to pay the proceeds directly to the person nominated.

This payment occurs outside of the will, meaning the funds bypass the estate and the probate process entirely. If no binding nomination was made, the trustee may pay the benefit to the estate, in which case a grant of probate would likely be required for the executor to manage those funds.

Assets Held Within Trust Structures

Assets held in a trust, such as a family trust or discretionary trust, are not legally owned by the deceased person. Instead, they are owned by the trust itself. Consequently, these assets do not form part of the deceased’s personal estate upon their death.

The distribution and management of these assets are governed by the terms of the trust deed, not the will. The trustee of the trust is responsible for administering the assets according to the deed, which means these assets are dealt with completely outside of the probate process.

The Step-by-Step Probate Process for Executors in NSW

Locating the Original Will & Valuing Assets

The first step in the probate process is to locate the original will of the deceased person, as copies are not sufficient for the court application. The will might be stored with the deceased’s solicitor, in a safe at home, or with the NSW Trustee & Guardian. If the original cannot be found, the application for probate becomes more complex.

Once the will is found, the executor must compile a complete inventory of the estate. This involves identifying and valuing all assets and liabilities as at the date of death.

• Assets can include property, bank accounts, superannuation, shares, investments, vehicles, and personal belongings.
• Liabilities may consist of mortgages, credit card debts, loans, and other outstanding bills.

Publishing a Notice of Intended Application

Before an executor can file for probate in NSW, they are required to publish an online notice of their intention to apply. This notice is published on the Supreme Court of NSW Online Registry, making the application a matter of public record.

The purpose of this notice is to provide transparency and allow any interested parties, such as creditors, to be aware of the intended application. There is a mandatory waiting period of at least 14 days after the notice is published before the executor can submit the probate documents to the court.

Preparing & Filing the Supreme Court Documents

An application for probate should be filed with the Supreme Court of New South Wales within six months of the person’s death, and it is wise to seek advice from wills and estate lawyers in NSW to ensure compliance. If the application is lodged after this period, the executor must provide the court with an affidavit explaining the reason for the delay.

The application requires several key documents to be prepared and filed, including:

• The summons for probate.
• The original will and any related codicils.
• A certified copy of the death certificate.
• An executor’s affidavit, which is a sworn statement containing details about the will and the estate.
• A complete inventory of the estate’s assets and liabilities.

Most uncontested applications in NSW are now lodged electronically through the court’s online registry.

Receiving the Grant & Administering the Estate

After the Supreme Court reviews the application and confirms all documents are in order, it will issue the grant of probate. This is the official legal document that formally authorises the executor to manage the estate.

With the grant of probate, the executor can proceed with administering the estate. This final stage of the probate process involves:

• Collecting all the assets, such as closing bank accounts and transferring property titles.
• Paying all outstanding estate debts and taxes.
• Distributing the remaining assets to the beneficiaries as specified in the will.

Executors must keep detailed records of all transactions to ensure transparency and protect themselves from potential claims.

Common Challenges & Mistakes for Executors to Avoid

Filing Errors & Missing Documentation

Mistakes in the application for probate can lead to significant delays in the probate process in NSW. The Supreme Court may issue requisitions, which are requests for more information or clarification, if the submitted documents are incorrect or incomplete.

Common errors that can stall an application include:

• Submitting a will that is unsigned or not witnessed correctly.
• Failing to provide an explanation for any staple marks or physical alterations to the will.
• Using outdated court forms for the application.
• Providing an inventory of assets where the total value does not match the supporting documents.
• Not waiting the mandatory 14 days after publishing the online notice of intended application before filing with the court.

Disputed Wills & Family Provision Claims

Disputes among family members can complicate and delay the probate process. A person with an interest in the estate can file a caveat with the court, which temporarily prevents a grant of probate from being issued. This is often used when someone intends to challenge the validity of the will, perhaps claiming it is a forgery or that the deceased person lacked the mental capacity to make it.

Additionally, family provision claims can arise where an eligible person, such as a spouse or child, feels they have not been adequately provided for in the will. These claims can pause the application for probate and may require legal intervention or mediation to resolve before the estate administration can proceed.

Distributing Estate Assets Too Early

One of the most significant risks for an executor is distributing the estate to beneficiaries too soon. An executor has a legal duty to pay all the deceased person’s debts and taxes before any inheritances are paid out.

If an executor distributes assets prematurely and outstanding liabilities are later discovered, the executor could be held personally responsible for paying those debts. To protect against this risk, it is wise to wait until all debts are settled. The Succession Act 2006 (NSW) (‘Succession Act‘) offers a level of protection to executors who do not distribute the estate for at least six months from the date of death.

Conclusion

Knowing when to apply for probate in NSW is critical for any executor, especially when the estate includes assets like property, significant bank balances, or shares. The probate process involves distinct legal steps that, when followed correctly, protect the executor from liability and ensure the estate is distributed according to the deceased person’s will.

If you are an executor seeking to apply for a grant of probate in New South Wales, contact our probate lawyers at LawBridge for expert guidance. Our team can assist with the entire probate process, from preparing the application to finalising the estate, ensuring you meet your legal duties efficiently.

Frequently Asked Questions