Probate
For executors in the Clarence Valley. What has to happen, in what order, and when it is safe to pay the beneficiaries.
For executors in the Clarence Valley. What has to happen, in what order, and when it is safe to pay the beneficiaries.
Probate is an order of the Supreme Court of New South Wales confirming that a will is valid and that the executor named in it has authority to deal with the estate. It is not a tax and, despite the name, it does not involve appearing in court — uncontested applications are decided by a registrar on the papers, and are filed online.
There is no legal requirement to obtain a grant in every estate. It is often unnecessary where everything was held jointly as joint tenants, because those assets pass to the survivor outside the estate. The same goes for superannuation and life insurance paid directly to a nominated beneficiary rather than the estate, and for assets held in a trust.
A grant is usually unavoidable where the deceased owned real property in their sole name or as tenants in common, because that interest forms part of the estate and the title cannot be dealt with without it. Beyond land, it comes down to each bank and fund, which set their own requirements — there is no legal threshold, the figures differ between institutions, and they change. The practical first step is to write to every institution and ask what it needs before spending anything on an application.
A grant of probate is what an executor named in a valid will applies for. Letters of administration apply where there is no valid will, and are granted to the next of kin in a statutory order of priority: spouse or de facto partner, then children, parents, siblings, grandparents, and aunts and uncles. Letters of administration with the will annexed apply where there is a valid will but no executor available — none was named, or the person named has died, renounced or lost capacity — and a beneficiary applies instead.
An executor who does not want the job can renounce, but it must be done before taking any step that amounts to accepting the role. Tell us early if that is you.
You will read everywhere that you must apply for probate within six months of death. That is not what the rule says, and the difference matters if you are already past it.
The Supreme Court Rules require that where a first application is filed more than six months after the date of death, the supporting affidavit must include a statement explaining the delay. It is an evidentiary requirement, not a limitation period. Nothing is lost by being late, and the court does not refuse a grant because six months has passed.
Ordinary explanations are accepted without difficulty — a will that took time to find, an executor interstate or overseas, illness, difficulty identifying assets, family disagreement. The practical consequence of not addressing it is a requisition and more delay, not refusal. So if it has been eight months since your mother died, you have not missed anything.
Before filing, a notice of intended application must be published on the NSW Online Registry, and at least fourteen days must pass before the summons is filed. Filing earlier produces a requisition.
The application itself comprises the summons, the original will and any codicils, the death certificate, the executor’s affidavit, a draft grant, and an inventory of property — a sworn schedule of assets and liabilities valued as at the date of death. Take the inventory seriously: it is sworn evidence, the court’s filing fee is calculated on the gross value it discloses, and it becomes the baseline against which beneficiaries later measure your administration.
The court fee is scaled by the sworn value of the estate, and small estates pay nothing at all. The scale is revised, so we will give you a current figure rather than one from a website.
Additional documents arise as circumstances require — renunciations, consents, an administration bond with sureties where entitled relatives do not consent, medical evidence where capacity was in issue, or a declaration where the document is an informal will.
This is where executors get hurt personally, and the common advice is wrong.
An executor who distributes before the debts are paid is personally liable for them, including tax debts. Pay everything first, attend to the estate’s returns, and do not pay out to the last dollar.
Then there is family provision. An eligible person — a spouse, de facto partner, child, former spouse, and certain dependants, grandchildren and household members — may apply for a family provision order within twelve months of the date of death. Not twelve months from the grant, and not from when they learned about the will. The court can extend that period, and a claim can be brought whether or not any grant has been made.
The statutory protection for a distributing executor requires publishing a notice of intended distribution specifying a period of not less than thirty days, and waiting until at least six months after the death. Those conditions are cumulative, not alternative. But note that six months is a statutory floor, not a safe harbour — the claim window runs for twelve. In most estates the prudent course is to hold the final distribution until the twelve months has passed.
And the protection disappears the moment you have notice of a claim. A solicitor’s letter foreshadowing a family provision claim, received before you distribute, removes it entirely. If you receive one, stop and bring it to us.
An intestate estate is distributed under a statutory order, not according to what the family believes the deceased would have wanted. If there is a surviving spouse or de facto partner and all the children are also that partner’s children, the partner generally takes the whole estate — the children receive nothing directly.
Where there are children from an earlier relationship, the position changes: the partner takes the personal effects, a statutory legacy set by the Act and adjusted for CPI, and half of the remainder, with all the children sharing the other half. Where there is no spouse, the estate passes to the first surviving class — children, then parents, siblings, grandparents, aunts and uncles — and only where none of those survive does it pass to the State.
There is also a thirty-day survivorship rule on intestacy, which occasionally matters where two people die close together.
If every asset was held jointly as joint tenants, those assets pass automatically to you as the surviving owner and a grant is often unnecessary. The position changes if anything was in the deceased's sole name, or held as tenants in common, or if a bank refuses to release a balance without a grant. Each institution sets its own requirements, so the practical first step is to ask every bank, fund and registry in writing what they need. We can review the asset list and tell you whether an application is genuinely required before you spend anything.
No. The six-month period is not a deadline and nothing is forfeited by passing it. What it means is that where a first application is filed more than six months after the date of death, the supporting affidavit must include a statement explaining the delay. Courts are accustomed to ordinary explanations, and a candid one is usually accepted without difficulty.
The grant gives you authority but it does not make distributing safe yet. Debts including tax must be paid first, because an executor who distributes before then can be personally liable for them. Separately, an eligible person has twelve months from the date of death to bring a family provision claim, and the court can extend that. In most estates the prudent course is to publish a notice of intended distribution and hold the final distribution until that period has passed.
An eligible person may apply for a family provision order, generally within twelve months of the date of death, and they can do so whether or not probate has been granted. Critically, once you as executor are on notice of a claim or a foreshadowed claim, the statutory protection that would otherwise cover a distribution no longer applies to you. Do not pay anything out. Bring us the correspondence straight away so we can advise on your position and how to respond.
The estate is distributed under a statutory order in the Succession Act, not according to what the family believes he intended. If there is a surviving spouse or de facto partner and all the children are also that partner's children, the partner generally takes the whole estate. If there are children from an earlier relationship, the partner takes the personal effects, a statutory legacy and half the remainder, with the children sharing the other half. Where there is no spouse it passes to children, then parents, siblings, grandparents and aunts and uncles in turn.
You can formally renounce, but it must be done before you take a step that amounts to accepting the role, so tell us early. If you renounce and no other executor is available, a beneficiary can apply for letters of administration with the will annexed instead. If you would rather remain as executor without carrying the administrative work yourself, we can do the work on your instructions, which is what most executors choose.
Send a short enquiry and we will come back to you, usually the same business day. This is a free initial enquiry so we can work out whether we are able to assist you. It is not legal advice, and there is no obligation either way.
This page is general information about the law in New South Wales. It is not legal advice and does not take account of your circumstances. The law changes, and how it applies depends on the facts of your matter. Please contact us so we can work out whether we are able to assist you.