Probate Application Process in NSW

When someone passes away, one of the key legal steps their family or loved ones may need to take is applying for probate. In New South Wales, this process is necessary to further ensure that the deceased’s estate is administered properly and in accordance with their Will.  

probate application process in NSW

What is Probate?

Probate is the legal process that gives the Executor (the person named in the deceased’s Will to manage the estate) the authority to distribute the deceased person’s assets and settle any debts. In simpler terms, it is a court order that confirms the Will is valid, the Executor is appointed, and they have the legal right to administer the estate. Moreover, the probate order is a public document and can be accessed by interested parties. 

The probate process ensures that the estate is dealt with according to the wishes of the deceased, as outlined in their Will. Furthermore, in the absence of a Will, the estate will be administered in accordance with the rules of intestacy, and the court will appoint an administrator to oversee the estate’s management. 

When is Probate Necessary?

Probate is typically necessary when the deceased person owned assets in their sole name or had assets that are not automatically transferable to others, such as real estate or large sums of money. In some cases, financial institutions and other entities may further require a grant of probate before they allow the Executor to access the deceased’s accounts or transfer ownership of their assets. However, not all estates require probate. If the deceased’s assets are small or if they are jointly owned (for example, joint bank accounts or joint property), probate might not be further needed.  

Key Steps in the Probate Application Process in NSW

The probate application process consists of several essential steps: 

1. Confirming the Executor and Reviewing the Will

probate application process in NSW

Before proceeding with a probate application, it is certainly essential to confirm who the Executor is and review the Will. Foremost, the Executor is responsible for ensuring the Will is carried out according to the deceased’s wishes. If no Executor is designated in the Will, or if the appointed Executor is unable or unwilling to fulfill their duties, the court may appoint an administrator to further manage the estate. 

2. Gathering Required Documents

Once the Executor has been confirmed, the next step is to gather all necessary documents to support the probate application. These include: 

  • The original Will (if available) – The original, signed Will must be filed with the court. A photocopy is typically not sufficient, and the court may refuse to grant probate without the original document. 
  • Death certificate – A certified copy of the deceased’s death certificate is required. 
  • Proof of the Executor’s identity – The Executor must provide identification, such as a passport or driver’s license. 
  • List of assets and liabilities – The Executor must compile a detailed list of the deceased’s assets and liabilities. This may include property, bank accounts, investments, and debts. 

3. Completing the Probate Application Form

probate application process in NSW

The Executor must complete a formal probate application form that can be obtained from the NSW Supreme Court website or at the court registry. Moreover, the form further asks for details about the deceased, the Will, the Executor, and the estate, including a list of assets and liabilities. 

4. Filing the Application with the Court

Once the necessary documents are prepared, the Executor must file the probate application at the NSW Supreme Court. Typically, the application must be made at the Supreme Court in the jurisdiction where the deceased lived at the time of their death. 

Furthermore, the application can be filed online via the NSW Online Registry or in person at the court registry. Once the application is accepted, the court will issue a probate application number, and a hearing date will be set. 

The filing fee for a probate application in NSW can further vary depending on the value of the estate.  

5. The Court Review Process

After the application is filed, the court will review the documents. Then, the court will further check the Will to ensure it meets the legal requirements and that the Executor is appropriately appointed.  

During this stage, the court may also give notice to potential beneficiaries or creditors. If there are no further objections to the application, the process will move to the next stage. 

Furthermore, the court may also request additional information or clarification, but if everything is in order, the probate application will proceed. 

6. Grant of Probate

probate application process in NSW

If the court is satisfied with the application and supporting documents, it will issue a grant of probate. This is a court order that formally recognises the Executor’s authority to administer the estate and carry out the deceased’s wishes as outlined in the Will.  

Once granted, the Executor will receive a copy, which they can use to deal with the deceased’s assets, pay debts, and distribute the estate to beneficiaries. 

7. Administering the Estate

With the grant of probate in hand, the Executor can now begin administering the estate. This includes: 

  • Notifying financial institutions, government departments, and other relevant entities about the deceased’s passing 
  • Collecting and valuing the deceased’s assets 
  • Paying any outstanding debts or taxes 
  • Distributing the remaining assets according to the Will 
  • Preparing an estate account to document the process 

8. Finalising the Estate

Upon the distribution of all assets and the settlement of any outstanding debts, the Executor will prepare a final account of the estate and distribute the remaining assets to the beneficiaries. The Executor may also need to file a notice of distribution with the court in certain circumstances. 

Once the estate has been fully administered, the Executor’s role is complete, and the estate is considered closed. 

Navigating the Probate Application Process in NSW with VC Lawyers

probate application process in NSW

The probate application process in NSW can be complex and time-consuming. Understanding each step, from gathering necessary documents to submitting an application, can help streamline this process. Executors are encouraged to seek legal advice if they encounter challenges or have questions about their responsibilities.  

At VC Lawyers, we have extensive experience guiding Executors through the probate application process in NSW. Our team of experienced lawyers can provide practical legal assistance to ensure that everything is completed accurately and efficiently. By working with us, Executors can rest assured that their loved one’s estate will be managed with the utmost care and professionalism. 

Contact VC Lawyers today to learn more about how we can help you navigate the probate application process in NSW. 

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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Pelagio Palma Jr., BA, LLB, LLM, MBA

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