Make sure that all information supplemented in the forms is certainly accurate and surely correct. Before applying for probate, a notice of intention to apply should be made. Intention will be published through the New South Wales (NSW) Online Registry website, which takes about 14 days (about 2 weeks). Finally, when the 14 days have passed, file your application with the Supreme Court of NSW in person or through the mail.

Probate Checklist and Filing Fee

Here is a checklist that might be certainly helpful to your application. Take note that you will also need to pay a filing fee or the application will not be processed without payment. Such application will not be processed unless filing fee is paid.

3. Understand the Implications Outlined in the Will

As an executor, you are also expected to do your part. You should be aware of all the legal, financial, and tax implications associated with executing the Will. One of your tasks is to make sure all assets are properly accounted for. It should also be transferred to the beneficiaries accordingly. Aside from assets, all outstanding debts and liabilities of the deceased should also be determined.

Of course, this process can be complex and tedious. However, this is one of the key responsibilities of an executor in NSW. Hence, if you find yourself placed in this position, it is best to seek legal advice for proper guidance.

4. Obtain an NSW Grant of Probate

Despite successfully applying for probate, this will not be considered a success yet. Also, it does not mean an easy-go signal of approval from the Court will be given to you.

Probate Requisitions from the Court

Whenever the Court finds your application lacking, a probate requisition will be issued. Additionally, such requisition can be any questions or concerns surrounding your application that should be addressed immediately. Furthermore, failure to respond and satisfy the requisitions can be grounds for the dismissal of your application.

Overall, if you are unable to respond within the period prescribed, ask for an extension to respond to the requisition.

Non-Contentious Application

If the application is non-contentious, meaning, no one has made a claim, challenged, or contested the Will, it is your responsibility to defend the estate until the Court has rendered its decision.

Rendering of Probate Decision of NSW Supreme Court

Rendering of decision is usually based on the volume of applications received by the Court during the time of your application. Given that, they will also consider the specifics of your probate application. For this reason, note that probate requisitions can also be a part of the delay in the decision. Hence, it is recommended to satisfy all of them right away.

5. Administer the Estate

Once probate is granted, you are now allowed to administer the estate according to the Will. This is the fifth and most important of all the responsibilities of an executor in NSW, this is considered the most important. Why? Because you must make sure the final wishes and instructions of the deceased is followed accordingly, including:

Collecting All the Assets

In light of becoming an executor, it is your responsibility to collect all assets accordingly. Regardless of the situation, all acts must be done in good faith and with due diligence. Any asset includes all the property the deceased owned, whether a home, car, money, shares, bank accounts, or other items in the deceased’s possession.

Settling Outstanding Debts of the Deceased

Once all the assets have been properly accounted for, you must proceed to pay all outstanding debts of the deceased. Generally, these may include funeral expenses, debts, and even taxes. Selling of some assets can be done if necessary to cover all outstanding liabilities, especially for unsecured debts.

Publishing a Notice of Intended Distribution

Before distributing the estate, the executor may choose whether or not to publish a Notice of Intended Distribution. Although this is not mandatory, this will serve as your protection against future claims. Whereas notice is published through the NSW Online Registry and is posted for 30 days.

Distributing the Estate to Beneficiaries

30 days after the date of the notice, you may now distribute the estate to the beneficiaries. As an executor, you can be liable for repayment or compensation for failure or negligence in administering the estate. On condition of legacy, in the form of a gift or money, you have 12 months to distribute such to the beneficiaries. Otherwise, the beneficiaries may claim interest.

Keeping All Records

For proper monitoring of the estate, it will be significantly helpful to keep a record of all transactions. By doing this, it ensures accountability in administering the estate throughout the entire probate process.

Renouncing as Executor of the Will

When you are appointed as an executor of a Will and cannot fulfill the responsibility, file for a renunciation of probate. Note that you cannot apply for a renunciation of probate if the Court has granted probate already.

Filing for Renunciation of Probate

A renunciation of probate is filed if the person nominated in the Will is unwilling to take the role and the responsibilities of an executor in NSW. Use the UCPR Form 123 in filing the renunciation. In case the grant is issued already, the executor can be removed only through an order of revocation by Court.

Instances like taking responsibility for the deceased’s estate, like paying bills on behalf of the estate, will be considered as “intermeddling with the estate”, and can be grounds for you to be unable to file the renunciation.

How can VC Lawyers Help?

Dealing with the application for a Grant of Probate while grieving can be an unimaginable situation to go through. Considering all the responsibilities of an executor in NSW. At VC Lawyers, you can have peace of mind. We will take care of the strict and complex policies. It is proudly handled by our proactive team experienced in Wills and Estates, including applications for Grants of Probate.

NB: This blog post is neither a legal advice nor intended to be such, and is only for general information. The same should not also be taken as a financial or commercial advice. The reader must personally consult their professional adviser/s on the contents of this blog post. VC Lawyers is not liable for any loss or damage, direct or consequential, as a result of the reader’s or a third person’s misconstruction of the wordings or use/misuse of the contents of this blog post.

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5 Key Responsibilities of an Executor in NSW

Rayda Palma-Parazo, BA HRD, LLB, GDLP
May 22, 2023
Estimated reading time: 15 mins

Do you have an idea about the major responsibilities of an executor in NSW? If you find out you were nominated as an Executor of a deceased estate, would you know what to do?

Nothing in this life is permanent. Aside from change, death is one of the inevitable things in this world. With death, comes the overwhelming feeling of loss, pain, sorrow, and suffering. No one can figure out when death may strike. But some people accept their fate and leave this world as best prepared as they can, by having at least some of their last wishes to be documented, all in the form of a Will.

Are You Nominated as Executor?

When preparing their Will, the Will maker, or the testator, identifies a person/s to act as the executor/s of such Will. Such name that appears in the Will is the executor. Furthermore, this person will be responsible for asset distribution, closing the deceased’s financial accounts, and settling outstanding debts or liabilities. All in all, being an executor bears a lot of responsibility.

Is Grant of Probate Necessary?

A grant of probate is a legal document allowing the executor/s authorization to administer the estate as outlined in the deceased’s Will. Probate also certifies that the Supreme Court recognizes the Will’s validity and legality. Thus, granting the authority of the executor/s to manage the deceased assets. This will only be required if the deceased:

Left a Will;
Is the sole owner (or tenant in common) of assets;
Has bank accounts over a certain amount; and
With large superannuation payable to the deceased (where a binding death nomination was not made).

Hence, the need to apply for probate all boils down to the type, size, and value of the deceased’s estate.

Other Considerations

On the other hand, if the deceased has assets that are jointly owned (and leaves a surviving join tenant owner), there is no need to apply for probate. Particularly, in the case of a married person who may hold assets jointly with a spouse.

Moreover, if the value of the deceased’s assets is at a minimum or does not exceed a certain amount, there may be no need to apply for an application for probate. Financial institutions which hold the assets determine if the asset value is considered “low value” based on their threshold.

Timeframe for Probate Application

Supreme Court encourages applications to be filed within three (3) to six (6) months from the date of death of the deceased. If the 6-month period has lapsed, you must explain through an Affidavit of Delay the reasons for the delay to the application. However, the affidavit has no prescribed or approved form. Though, you may use the Uniform Civil Procedure Rules (UCPR) Form 40 by changing the heading to “Affidavit of Delay.”

5 Responsibilities of an Executor in NSW

Being an executor requires careful examination of all the steps necessary for carrying out the probate process from start to finish. Therefore, you need to pay close attention to all the details of this process as well. Moreover, an executor may also face legal liabilities if they fail to fulfill their fiduciary executorial duties and requirement to act in good faith for the benefit of the estate or act in their own self-interest.

There is an emphasis on how big of a responsibility an executor must play. Though this seems daunting, executors know that they need to go through this not for themselves, but for their loved ones who have given them their trust. Keep in mind these five (5) major responsibilities of an executor in NSW:

1. Check Eligibility as an Executor

One of the responsibilities of an executor in NSW is to check his/her eligibility. Prior to starting the probate process, make sure that you meet the following requirements:

First, you must be over 18 years of age;
Then, your name appeared in the Will as the executor; and
Lastly, file the application within 6 months from the date of death of the deceased.

Meanwhile, when you satisfy all these requirements, it is now time to move on to the next step.

2. Prepare Probate Documents and Forms as Required by NSW Supreme Court

Prepare these documents to formally start the application process:

Original Will, if the original copy cannot be located, please seek legal advice right away.
Original Death Certificate, translated to English if the certificate is in another language instead.
Any codicil, written by the deceased in a separate document that sets out any changes made to the Will.

Above all, make extra copies of these documents and get them certified since this is equally important.

Probate Forms Required in NSW

Also, as part of the application is to accomplish the following forms to file for probate. Forms can be access either through the Supreme Court of New South Wales registry or through the Uniform Civil Procedure Rules (UCPR) website. To enumerate, here are the form provided below: