Unequal estate distribution and s100 statements

Probate in NSW: What It Is and When You Need It

Probate

Probate is one of the first things an executor has to manage after someone close dies, often at an already highly stressful and difficult time. We frequently assist executors in Beecroft, Cheltenham, Epping, Castle Hill and the broader suburbs across the Hills District and North Shore, to apply for probate in New South Wales.

What probate actually is

Probate is a grant made by the Supreme Court of New South Wales that confirms a will is valid, and gives the executor or executors named in the will legal authority to deal with the deceased person’s estate. It does not change who inherits an estate, and it does not decide any dispute about the will. It simply provides official recognition that the will is the last valid will of the person who has died, and that the executor is entitled to administer the estate and distribute estate assets in accordance with the will.

Banks, share registries, aged care providers, and the Land Registry rely on the recognition probate provides. Once a grant is issued, the executor can produce this as proof of their authority, start collecting in the assets, paying estate debts, and distribute remaining assets to beneficiaries.

When you need probate and when you do not

Not every estate needs a grant of probate, and whether yours does depends far more on what the deceased owned, and how it was held, than on the size of the estate as a whole.

Assets held jointly, such as a family home owned as joint tenants or a joint bank account, usually pass automatically to the surviving owner by survivorship and do not require a grant, unless there are other significant assets held by the deceased individually. In addition, superannuation and life insurance often pass directly to a nominated beneficiary and these usually sit outside the will. Further, where the estate is modest, say cash under $50,000, or made up only of assets such as those described above, probate may not be required.

Probate is generally required where the deceased held real property in their sole name or as tenants in common, or where a bank, share registry or other institution holds significant assets and will not release them without a grant. Each institution sets its own threshold, so it is common for one bank to release funds on a death certificate alone while another insists on a formal grant for a similar amount. In addition, aged care facilities and nursing homes invariably require a probate grant in order to release the deceased’s refundable accommodation deposit (RAD).

The probate process in New South Wales

The process involves the following steps:

The executor locates the deceased’s original will, as the NSW Supreme Court requires the original document in all but exceptional cases.
The executor collates details of the estate assets, including bank accounts, share portfolios, property, investments, and any aged care/nursing home RAD.
The executor meets with their solicitor and provides the original will, original death certificate and a list of estate assets together with estimated values.
The probate application prepared by your solicitor, and comprises a summons, an affidavit of the executor, the original will, and an inventory of property setting out the estate assets and values.
Once these documents are finalised and signed by the executors, the application is filed with the Supreme Court
At the time of filing the probate application, a notice of intended application on the NSW Online Registry (Notice of Intention) is also generated. This alerts anyone with an interest in the estate to the pending probate application.
The Court reviews the application and, if satisfied that everything is in order, issues the grant of probate.
Once probate is granted, it is prudent to file a notice of intended distribution of the estate (Notice of Distribution) with the NSW Online Registry, to protect the executor from any creditor’s claims on the estate.

If the Court requires further information on a particular issue raised by the will or the application, the Supreme Court may raise a requisition, which is a formal query that must be answered before the grant can issue. This is often the most common cause of delay.

How long it takes

Once the probate application has been filed, most straightforward grants are issued within 4 weeks This is subject to the Registry's current processing time. An application that attracts requisitions, or one where the original will cannot be found, or is defective in some way, may take considerably longer. Taking the time to draft the Affidavit of Executor accurately and to record the deceased’s inventory of property carefully will usually save time later on.

What happens after the grant

Once the grant issues, the executor calls in the estate assets, pays estate debts, funeral expenses, and any tax owing to the ATO, then distributes the assets to beneficiaries in accordance with the will. The estate assets may only be distributed on the date that is the later of:

1. 6 months from the date of death of the deceased; or

2. 30 days after the date of filing of the Notice of Distribution.

An eligible person can bring a family provision claim against an estate within twelve months of a testator’s date of death. For that reason, prudent executors may hold off on final distribution until they are confident that no claim is imminent.

What if there is no will

Where a person dies without a valid will, they are said to have died intestate, and instead of probate someone close to them, usually their next of kin, applies to the Court for letters of administration. The role is similar to that of an executor, but the estate is distributed according to the intestacy rules set out in the Succession Act 2006, rather than the wishes of the deceased person. Those rules follow a fixed order of relatives and can produce an outcome that the deceased would not have chosen, which is one of the clearest arguments for having a will in place.

The cost of probate

Obtaining a grant involves two main costs. The first is the Court filing fee, which is set by the Supreme Court, scaled to the gross value of the estate and reviewed each year, so a larger estate attracts a higher filing fee. The second is the professional cost of preparing and lodging the application, which is prescribed by a regulated scale under New South Wales legislation, and is likewise based on the value of the estate.

We set out both costs clearly before you engage us, so you know what to expect from the outset.

Frequently Asked Questions

How long does probate take in NSW?
Do I always need probate?

No. Whether you need probate depends on what the deceased owned, how their assets were held, and whether there is a RAD in place with an aged care facility or nursing home. Jointly held assets and nominated superannuation often pass outside the estate, while real property held in a sole name, larger institutional holdings, and in circumstances where a RAD is held, usually a grant is required.
What if I cannot find the original will?

The Court generally requires the original will. Where only a copy exists, or the will has been lost, it may still be possible to obtain a grant, but the application is more involved and needs additional evidence explaining what happened to the original will. Alternatively, letters of administration may need to be obtained.
What happens if there is no will?
Is there a deadline to apply for probate?

There is no strict cut off, but where an application is made more than six months after the date of death the Court expects the executor to explain the delay. It is best not to leave it too long, as records and assets become harder to trace over time and the Court will ask more questions.
Can there be more than one executor?
What if the named executor does not want to act?

An executor is not forced to take on the role. They can renounce it, in which case any substitute named in the will can instead apply alone, or an eligible person if there is no substitute can apply for letters of administration instead. This may require additional documentation to be submitted to the Court Registry.
Does a probate application need to be advertised?

This article is general information only and does not constitute legal advice. It does not take into account your particular circumstances and should not be relied on as a substitute for advice tailored to your situation.

Fioro Legal advises executors and families across the Hills District and North Shore on probate and estate administration. If you are unsure whether probate is required or want to understand your obligations as an executor, contact us at info@fiorolegal.com.au or on 0481 848 450.

Mobile: 0481 848 450

Email: info@fiorolegal.com.au

Web: www.fiorolegal.com.au