When a person dies leaving a will, certain legal procedures have to be followed before the estate can be distributed to beneficiaries.
The executor's role in administering the estate
An executor is responsible for:
- finding the will
- arranging for disposal of the body
- getting the death certificate from the NSW Registry of Births, Deaths and Marriages
- ascertaining the deceased’s assets and liabilities
- assessing the value of the deceased’s assets
- obtaining Probate if required
- paying the deceased’s debts, income tax, duties and funeral expenses
- distributing the assets according to the terms of the will.
A Grant of Probate can only be made if there is a will. However, often the family does not know whether the deceased left a will or where it can be found. If you cannot find a will in the deceased’s personal papers, check with their bank or solicitor, or the NSW Trustee & Guardian.
Probate is an order from the Supreme Court stating that the will has been proved to be the last valid will of the deceased and allowing an executor to collect and distribute the estate in accordance with the terms of the will.
Probate will always be necessary if the deceased died owning real estate except if it is owned as joint tenants (see If the deceased owned property with someone else in the After the Grant of Probate or Letters of Administration chapter).
If the application for Probate of the will is uncontested, the Grant of Probate will be in what is called ‘common form’, which means that the grant can be overturned (revoked) in certain circumstances. If the application is contested, and all interested parties have the chance to take part in the court proceedings, the grant will be in ‘solemn form’. A grant made in ‘solemn form’ can only be revoked in exceptional circumstances.
Applying for a Grant of Probate
You can apply for a Grant of Probate yourself (although that is not recommended except for the simplest of estates), or through:
- a solicitor
- a trustee company
- NSW Trustee & Guardian.
Publishing an online Probate Notice
A notice announcing that you are applying for Probate has to be published on the Supreme Court’s website at least 14 days before the application is made. The reason for this notice is to give anyone who knows of another will, creditors, or others with an interest in the estate an opportunity to submit their claims. Before January 2013 notices were advertised in newspapers but this is no longer sufficient. The cost as at 1 July 2020 is $48. The online notice of application for Probate and instructions on how to register and file forms is available from the NSW Online Registry for courts and tribunals.
Obtaining a death certificate
Usually, the funeral director arranges registration of the death and all you have to do is complete a death certificate application form, identifying yourself and your reason for wanting the certificate. Alternatively, the funeral director can obtain the death certificate on your behalf. Forms are available from the NSW Registry of Births, Deaths and Marriages. The Registry will only be able to provide a Death Certificate if the death has been registered. If the death occurred outside NSW, you will need to contact the Registry office for the relevant state or territory.
In NSW, certificates are available to the:
- next of kin listed on the certificate (spouse, parent or child of the deceased)
- funeral director (within two months of the registration)
- solicitor acting for the next of kin or estate
- executor of the estate.
As well as three forms of (your) personal identification, you need to provide:
- personal details of the deceased
- when and where the death occurred
- the full names of the deceased’s parents
- details of the deceased’s spouse.
If you are a relative that is not listed on the death certificate, there are extra requirements for obtaining a certificate.
The cost of the certificate is $60 or $88 for an urgent request (these amounts were current at July 2020).
Ascertaining assets and liabilities
The initial task of locating assets and uncovering any debts usually involves writing to the asset-holders and creditors asking for details of the assets and debts, and their requirements for release. A bank, for example, will advise whether or not they require evidence of Probate before releasing the deceased’s funds to you.
The application for Probate
The procedures outlined below are not intended to be a do-it-yourself guide; they are only an indication of what the process involves.
Summons and affidavit
The Probate application requires at least four documents to be filed with the Probate Registry of the Supreme Court of NSW:
1. Summons for Probate — the form is available online (No. 111, Approved Civil Forms)
2. Affidavit of executor — the form will tell the applicant what is required, which depends on the circumstances, however in every case the following will be required:
- a certified copy of the Death Certificate — a certified copy of the death certificate will usually be sufficient for making an application for Probate or for Letters of Administration. However, if the death occurred overseas, the original plus a certified copy of the death certificate with any English translation by an accredited translator should be filed with a note to return the original when the grant is made.
- inventory of property — showing details of the assets in the estate
- details of any liabilities
- details of the beneficiaries.
3. Original will
4. Form of Probate in duplicate. A self-addressed stamped envelope in which the Probate document will be posted to you is also required.
More documents may be required if it is a complex application. See the Supreme Court website for further information about Probate and forms.
In the affidavit of executor, the executor swears that they will administer the estate according to the law and that they know of no reason why they should not be granted Probate of the will. It must also contain a statement as to whether the deceased had left any other document attempting to set out their testamentary intentions.
If any information is missing or a form has been filled out incorrectly, you will be asked in writing to correct the problem. This is known as a requisition.
Granting of Probate
If there is no dispute about the will, you will be granted Probate in common form. Probate will not be granted if the court has decided that the will is invalid (for example, that it is not the last will of the deceased), and a court case may result. When a disputed will has been approved by a court Probate is granted in solemn form (see Probate above).
Executor not appointed in the will or unable to act
If no executor was appointed
If no executor was appointed in the will, the court will appoint an administrator, usually the major beneficiary, to carry out the terms of the will (Probate and Administration Act 1898 (NSW), section 74).
If the executor does not wish to act
A person appointed as executor does not have to accept that responsibility. If a person doesn’t want to be the executor, they can give up their right to obtain Probate by filing a renunciation with the registry. The executor can appoint the NSW Trustee & Guardian or a private trustee company to take their place. Alternatively, one of the beneficiaries can apply to the court to become the administrator of the estate (Probate and Administration Act 1898, section 74).
If the executor dies before the will-maker
This frequently happens when the will is old. If there is no executor or substitute executor, the court will appoint an administrator, usually the beneficiary with the largest share of the estate.
If the executor is under 18 years of age
Where the sole executor is under 18 years of age, the court will appoint the minor’s guardian, or any other person it considers suitable, as executor until the minor reaches 18 years of age.