Probate Lawyers & Letters of Administration Sydney

Q: Can an executor be paid?

An executor can ask the Court to allow them commission out of the estate for their time and effort. The Court considers the claim when the executor's accounts are passed, and can reduce a commission it considers excessive (ss 86, 86A).

Q: Can I refuse to be an executor?

Yes. If you do not want to act, you can renounce probate. Your role then ends, and the estate is administered as if you had never been appointed (s 69). If the will names another executor, they can apply. If not, a beneficiary can apply for letters of administration with the will annexed.

Q: Can you contest a will after probate?

Yes. A claim for a greater share of an estate, called a family provision claim , can be made whether or not probate has been granted. It must usually be made within 12 months of the death, unless the Court allows a later claim (Succession Act 2006 s 58). If you are considering a claim, or you are an executor facing one, see our page on contesting a will.

Mascot, Gladesville & Sydney CBD

When someone close to you passes away, the person left to manage their estate often has to deal with the Supreme Court of NSW for the first time. Whether you are the executor named in a will or a family member of someone who died without one, we can explain what needs to happen and handle the application for you. Our wills and estates team includes an Accredited Wills and Estate Law Specialist.

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Overview: What Is Probate?

In NSW, probate means a court order that confirms a will is valid and gives the executor named in it the authority to deal with the deceased person's estate. The executor is the person the will appoints to collect the assets, pay the debts and give the rest to the beneficiaries. The document the Court issues is called a grant of probate.

Until a grant is made, the law treats the deceased person's property as vested in the NSW Trustee (Probate and Administration Act 1898 (NSW) s 61). Once probate is granted, the property passes to the executor, as from the date of death (s 44).

The grant does not make the executor the owner for their own benefit. The executor holds the estate as a fiduciary: someone legally bound to act in the interests of others. They must preserve the assets and apply them in the proper order, to creditors first and then to the beneficiaries (Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12).

If you've been named as an executor, book a consultation and we'll explain your role and handle the grant for you.

Probate in NSW: When You Need a Grant

In NSW, probate and letters of administration are granted by the Supreme Court of NSW. The Court can make a grant for any deceased person who left property in NSW (s 40). There is no separate probate court.

Not every estate needs a grant. Whether one is needed depends on what the deceased person owned and how they owned it.

Not sure whether the estate you're dealing with needs a grant? Book a consultation so we can review the assets and tell you what's required.

When Probate May Not Be Needed

The NSW Trustee and Guardian explains that a grant may not be needed if:

All assets were jointly owned with one other person. For example, a home and bank accounts held jointly with a spouse. Land held as joint tenants passes to the surviving owner, who can apply to be registered as the owner on proof of death (Real Property Act 1900 (NSW) s 101).
The estate is small. Banks, share registries and other institutions each set their own rules on releasing funds without a grant. It is up to each institution, so ask the institution holding the asset.

Superannuation Is Paid Separately

Superannuation does not pass under a will in the same way as other assets. It is paid by the super fund's trustee under the fund's rules and Commonwealth law.

A super fund can only pay a death benefit to the member's legal personal representative (the executor or administrator) or to one or more of their dependants, such as a spouse or child. If neither can be found after reasonable enquiries, it can be paid to another individual (Superannuation Industry (Supervision) Regulations 1994 (Cth) reg 6.22). If it is paid to the executor, it is then dealt with under the will.

Many funds let members make a binding death benefit nomination: a written direction telling the trustee who to pay (Superannuation Industry (Supervision) Act 1993 (Cth) s 59(1A)). Strict signing and witnessing rules apply to binding nominations, and a nomination may lapse (reg 6.17A). If you are an executor, ask each fund what it needs from you.

Letters of Administration

Letters of administration are a grant the Supreme Court makes when there is no executor able to apply for probate. The person appointed is called the administrator. An administrator has the same rights and duties as an executor, and is accountable in the same way (s 74A).

The Court can appoint an administrator when a person dies (s 74):

without a valid will (this is called dying intestate)
with a will that does not name an executor, or
with a will whose executor is not willing or able to act, or lives outside NSW.

If there's no will, or the executor can't act, book a consultation and we'll confirm who is entitled to apply and prepare the application for you.

Letters of Administration Without a Will

When someone dies without a valid will, the Court can grant letters of administration to their spouse, to one or more of their next of kin, or to the spouse together with next of kin (s 63). If there is no suitable person, the Court can appoint anyone it thinks fit, including a creditor. An administrator cannot be under 18.

The administrator does not decide who inherits. The Succession Act 2006 (NSW) sets a fixed order.

Who Inherits When There Is No Will in NSW

A person who dies without a will, or whose will does not deal with all their property, is called an intestate (s 102). Their estate, after funeral and administration expenses and debts, passes in this order:

A spouse and no children: the spouse inherits the whole estate (s 111).
A spouse and children who are all also the spouse's children: the spouse inherits the whole estate (s 112).
A spouse and at least one child from another relationship: the spouse receives the personal effects, a statutory legacy (a set amount adjusted for inflation) and half of what remains. The children share the rest (ss 113, 127(2)).
No spouse: the children inherit in equal shares. If a child has died, their children take that child's share (s 127).
No spouse or children: the estate passes to the parents, then brothers and sisters, then grandparents, then aunts and uncles (ss 128 to 131).
No one entitled: the estate passes to the State (s 136).

A "spouse" includes a husband or wife, and a partner in a registered relationship. It also includes a de facto partner, if the relationship lasted 2 years continuously or produced a child (ss 104, 105). Special rules apply where there is more than one spouse. To inherit on an intestacy, a person must survive the deceased person by at least 30 days (s 107).

Letters of Administration With the Will Annexed

Sometimes there is a valid will, but no executor who can apply. The will may not name one, every named executor may have died or renounced, or the executor may be unwilling to act. In these cases the Court can grant letters of administration with the will annexed. The administrator then manages the estate according to the will.

If a named executor neither applies for probate nor renounces it within 3 months of the death, a beneficiary, a creditor or another person interested in the estate can ask the Court to step in (s 75).

Probate vs Letters of Administration

Question	Grant of probate	Letters of administration
When it is used	There is a valid will and the named executor applies	There is no will, or no executor able or willing to apply
Who applies	The executor named in the will	Usually the spouse or next of kin, or a beneficiary under the will
Who receives the estate	The beneficiaries under the will	Under the will (if there is one), otherwise the intestacy rules
Person's title	Executor	Administrator
Duties	Collect assets, pay debts, distribute	The same (s 74A)

How to Apply for Probate in NSW

Applying for probate and applying for letters of administration follow similar steps. An application that is not contested can be dealt with by a registrar on the papers, without anyone going to court (Supreme Court Rules 1970 (NSW) Pt 78 r 9).

Book a consultation and we can prepare and file the application for you, including the probate notice and supporting affidavit.

1. Find the Original Will

The executor needs the deceased person's last will. The application must also show that a search was made for any will deposited with the Court (s 42(3)). If the only will is a document that was not properly signed and witnessed, the Court can still accept it as the will if it is satisfied the person intended it to be their will (Succession Act 2006 s 8). That application needs more evidence.

2. Identify the Assets and Debts

The application must disclose the deceased person's assets and liabilities (s 81A). Any asset not disclosed cannot be sold or transferred until it is (s 81B). It helps to gather bank statements, property details, share holdings and super fund information early.

3. Publish a Probate Notice

At least 14 days before applying, the executor must publish a notice of the intended application on the NSW Online Registry website (s 42(2); r 78.3). The notice gives the date of the will and asks creditors to send in their claims.

4. File the Application With the Supreme Court

The application is filed through the NSW Online Registry, with electronic copies of the will and a certified copy of the death certificate (rr 78.9A, 78.10). It is supported by an affidavit from the applicant in the approved form (r 78.12).

5. Answer Any Objection

A person who claims an interest in the estate can file a caveat, a formal notice asking the Court not to make a grant without hearing from them. A caveat lapses after 6 months unless the Court orders otherwise (rr 78.66, 78.69). If a caveat is lodged or the will is disputed, the application may become contested, and we can advise you on the next steps.

How Our Probate Lawyers Help Executors and Families

Our deceased estate lawyers help executors, administrators and families with every stage of estate administration. Most estates can be administered without a dispute. Our role is to make the process clear and keep it moving, so you can focus on your family.

We can help you to:

Apply for a grant, including probate, letters of administration, and letters of administration with the will annexed.
Deal with complications, such as a missing or informal will, an executor who will not act, or assets held in several names.
Administer the estate from start to finish, including collecting assets, dealing with banks, super funds and NSW Land Registry Services, paying debts and distributing.
Protect you as executor, by publishing the right notices and timing the distribution.
Prepare and pass accounts, and apply for executor's commission.
Act for beneficiaries who want to understand what an executor must do and when.
Reseal grants from elsewhere, where a grant made outside NSW needs to be recognised for NSW assets (s 107).

Why Choose VRT Lawyers for Probate and Estate Administration

Administering an estate is often done while grieving, under time pressure, with family members waiting. We give you clear advice and handle the legal work, so you know what to do and when.

Daniella Ruggero, Principal and Accredited Family Law Specialist at VRT Lawyers in her Sydney office.

Tyson Beckman, associate at VRT Lawyers, working at his desk

Tayla McPhee, solicitor at VRT Lawyers, speaking with a colleague at her desk

Genesis Burbano, solicitor at VRT Lawyers, taking notes

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FAQs

What does an executor do?

Being named as an executor is a significant responsibility. You are dealing with someone else's money and property for the benefit of others, and an executor can be personally liable for failing to administer the estate properly (Livingston, above).

An executor's main tasks are to:

Find the will and apply for probate if it is needed.
Collect and protect the assets, such as bank accounts, property and shares. The executor can sell or mortgage property for the purposes of administering the estate (s 46).
Pay the debts and expenses of the estate, including the funeral and administration costs.
Keep proper records. Some executors must also verify and file accounts with the Court, for example where the executor is the guardian of a child who is a beneficiary, or a charity receives a substantial part of the estate (s 85).
Distribute the estate to the beneficiaries named in the will, at the right time and in the right way.

An executor is appointed by the will. An administrator is appointed by the Supreme Court when there is no will or no executor able to act. Once appointed, both have the same rights and duties, and both are accountable in the same way (s 74A).

Can an executor be paid?

An executor can ask the Court to allow them commission out of the estate for their time and effort. The Court considers the claim when the executor's accounts are passed, and can reduce a commission it considers excessive (ss 86, 86A).

Can I refuse to be an executor?

Yes. If you do not want to act, you can renounce probate. Your role then ends, and the estate is administered as if you had never been appointed (s 69). If the will names another executor, they can apply. If not, a beneficiary can apply for letters of administration with the will annexed.

What if the executor will not apply for probate?

If a named executor does not apply for probate or renounce it within 3 months of the death, a beneficiary, a creditor or another person with an interest in the estate can apply to the Court. The Court can order the executor to take probate, or grant letters of administration with the will annexed to someone else (s 75).

Do all wills in NSW have to go through probate?

No. A grant may not be needed if every asset was jointly owned with one other person, or if the estate is small enough that the institutions holding the assets will release them without one. Each institution sets its own rules. If an institution holding an asset asks for a grant, the executor will need to apply.

Do I need a solicitor for probate in NSW?

No law requires you to use a solicitor. Some executors apply themselves through the NSW Online Registry. Legal advice is worth getting where the will is unclear or informal, there is no will, an executor will not act, assets are held in different ways, or a family member may make a claim.

How long does probate take in NSW, and is there a time limit to apply?

There is no strict deadline to apply. But if the first application is filed more than 6 months after the death, the applicant must explain the delay in their affidavit (r 78.16), so it is best to start early.

How long the whole process takes depends on the estate and on the Court. Some waiting periods are set by law. The probate notice must be published at least 14 days before you apply. After a grant, an executor who wants the protection of the law should wait at least 6 months from the death, and at least 30 days after publishing a notice of intended distribution, before distributing. The time the Court takes to process an application varies.

What happens after probate or letters of administration are granted?

The executor or administrator collects the assets, pays the debts and expenses, and then distributes the estate under the will or, if there is no will, in the order set by the Succession Act 2006. Timing matters, because distributing too early can leave an executor personally exposed.

The law protects an executor or administrator who distributes the estate after following set steps. They must (s 92):

wait at least 6 months after the death
publish a notice of intended distribution, giving at least 30 days for claims, and
wait until that time has passed.

The notice is published on the NSW Online Registry once a grant has been made (r 78.93). An executor who follows these steps is not liable to a claim they did not know about when they distributed. The same protection applies to family provision claims, as long as the executor had no written notice of a claim when distributing (Succession Act 2006 s 93).

Book a consultation and we can publish the notice of intended distribution and time the distribution, so you have the protection the law gives executors.

How do I search probate notices in NSW?

Probate notices, and notices of intended distribution, are published on the NSW Online Registry, where anyone can search them free of charge by the deceased person's name.

Searching the notices helps you find out whether someone has applied for a grant, who the executor is and whether the estate is about to be distributed. If you are a creditor, or you believe you have a claim on the estate, a probate notice is your signal to act.

Can you contest a will after probate?

Yes. A claim for a greater share of an estate, called a family provision claim, can be made whether or not probate has been granted. It must usually be made within 12 months of the death, unless the Court allows a later claim (Succession Act 2006 s 58). If you are considering a claim, or you are an executor facing one, see our page on contesting a will.

Can a beneficiary insist on receiving a particular asset?

Not while the estate is still being administered, if they are entitled to a share of what is left (the residue). Until administration is complete, the executor holds the whole estate. No residuary beneficiary owns any particular asset in it (Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12). The executor can sell assets to pay the debts and administer the estate (s 46), but must act properly and in the interests of everyone entitled.

Can next of kin withdraw money from a deceased person's bank account?

Not from an account in the deceased person's sole name without the bank's agreement. Each bank sets its own rules on releasing funds without a grant. A joint account held with one other person can often be dealt with by the surviving account holder without a grant. If you are unsure, speak to the bank and get advice before moving any money.

Still have questions?

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